80 Cal. 129 | Cal. | 1889
The defendant was convicted of grand larceny, and the only question presented for our consideration is, whether the evidence is sufficient to support the verdict. The bill of exceptions (which is a model in form and conciseness) shows the following state of facts:
On the thirtieth day of June, 1888, the prosecuting witness, Bryan, was lying on a bench in the shade of a porch at Orland. Some horses which were tied to the porch
The only conflict there is in the evidence is upon the question whether the defendant placed, or pretended to place, the money under the pillow, as claimed by Bryan, or whether he took it out of the room without pretending to place it under the pillow, and deposited it as claimed by defendant; and this portion of Bryan’s testimony is the only evidence in the case which in any way tends to show a felonious taking of the money by defendant. Taken altogether, the evidence is entirely consistent with the claim of defendant that he took it as the friend of Bryan for safe-keeping, believing that, as the room was not locked, and as there- were a great many strangers in town that day, some one might" enter the room and take it away from Bryan while the latter was sleeping. Every act of the defendant subsequent to the taking of the money from the person of Bryan is indicative of fair and honest dealing. The fact that he went from Orland to Germantown immediately thereafter is explained, by the fact that such visit had been contemplated for several days. It is not disputed that the money was placed in the hands of defendant’s friend for safe-keeping. As soon as the defendant was notified that he was wanted in Orland, he started to return, and when met by the constable, immediately informed him where the money was, and promptly and voluntarily offered to return it. The evidence is not sufficient, we think, to produce a conviction in an unprejudiced mind that there was any felonious taking of the money by defendant, and the verdict must have been the result of passion and prejudice. Even in civil cases, “that evidence is deemed satisfactory which ordinarily produces
Beatty, C. J., Works, J., McFarland, J., Fox, J,, Sharpstein, J., and Thornton, J., concurred.
Rehearing denied.