107 P. 709 | Cal. Ct. App. | 1910
The defendant was convicted of the crime of grand larceny. He appeals from the judgment on the verdict and from the order denying his motion for a new trial. He claims that the evidence was insufficient to establish his guilt, his contention being based principally upon the fact that the evidence was circumstantial. The larceny charged was the felonious taking of a sucking calf about eight months old. The criticism of the evidence is addressed to two facts — first, that proof of the ownership of the mother of the calf depended upon the marks and brands upon the cow which had not been recorded as required *468 by the statute, and, second, the circumstance that while the defendant was killing and dressing the calf the cow stood in the road bellowing and apparently showing much distress at the loss of her young, and when driven away broke from the pasture where she had been placed and returned the next morning and resumed her demonstrations of grief.
It seems to have been the theory of defendant's counsel that the marks and brands found on the cow were no evidence of ownership, because they had not been recorded. InPeople v. Bolanger,
Ownership of the calf did not wholly depend upon the evidence given by the mother, to which no objection was offered, although the witnesses seem to have attached some importance to her demonstrations in confirming them in their belief, otherwise formed, that the calf killed by defendant belonged to his neighbor, Van Loan. We think there was sufficient evidence to support the verdict.
The defendant was a witness in his own behalf. After the defendant had rested the court permitted him to be recalled for further cross-examination by the district attorney. The following proceedings occurred:
"By Mr. Jamison: Q. Did you have any conversation with Wade Williams, here in Alturas, Modoc county, California, on Main street of said town, or near the bridge over Pitt river, at which conversation only yourself and Wade Williams was present and within hearing of it, in the latter part of October, 1906, just after you had been arrested for grand larceny on the charge of stealing a calf belonging to E. Van Loan, in which conversation, after asking Wade Williams to go your bond, you said to him 'Tell old Charlie' — meaning the older brother of Wade Williams — ' not to be too hard on me,' or words in substance and to that effect? *469
"Mr. Wylie: We object to that question on the ground that it is irrelevant, incompetent and immaterial; this is his own witness, and he cannot impeach his own witness.
"The Court: I understood that he was recalled on cross-examination, for further cross-examination.
"Mr. Wylie: We were through with him, he was examined in chief by us, then cross-examined, and we had closed our case and rested, he is not our witness now; we were through with him when we closed our case.
"(Argument by respective counsel.)
"The Court: The rule is very strict against compelling a defendant to be a witness against himself, and it is about adjourning time; I will think this matter over until tomorrow morning. (Court gives usual admonition to jury.)
"Court now takes a recess until to-morrow morning at half-past 9 o'clock.
"Court is called to order Thursday, April 15, 1909, Judge Head presiding. Present the defendant and his counsel; also the district attorney, jury and officers of court.
"Charles Romero, the defendant, is on the witness-stand for further cross-examination.
"Mr. Jamison: I will say this since last evening I have examined into the question that the gentlemen raised on the other side, that in any circumstances we would not have the right to ask the defendant the question propounded; and I am not satisfied that I am right in insisting that I ask the question. I will withdraw the question.
"The Court: Very well; Mr. Romero, you are excused from the witness-stand.
"Mr. Jamison: That is all; the people rest."
The supreme court held, in People v. Arrighini,
Misconduct of a juryman is urged as ground for a new trial, the claim being that he indulged too freely in intoxicating drinks during the trial. There were some depositions submitted in support of this ground urged for a new trial, that when not on duty as a juryman, Hayes did drink to excess, but several jurymen deposed that at no time during the proceedings while evidence was being taken or when the jury retired to consider their verdict was Hayes intoxicated, but, on the contrary, he was "sober during the trial, and in all ways perfectly able to consider the evidence introduced at the trial of said cause and to intelligently exercise his judgment thereon." The trial judge occupies such relation to the trial before him as to be best able to judge of the actual condition of the juryman where the evidence is conflicting upon that point. (People v.Sullivan,
The judgment and order are affirmed.
Burnett, J., and Hart, J., concurred. *471