63 P. 86 | Cal. | 1900
The defendant was convicted of the crime of grand larceny, and has appealed from the judgment and from an order denying his motion for a new trial.
It is conceded that the evidence was sufficient to justify the verdict, but certain errors are urged which we will notice in the order presented in defendant's brief. It is claimed that the indictment does not state facts sufficient to constitute a public offense, for the reason that the personal property alleged to have been stolen is not described with sufficient certainty. The description is "four calves, then and there the personal property of Anton Luchessa." This description is sufficiently certain.(People v. Littlefield,
The defendant offered the following instruction: "The possession of stolen property in a case of larceny is a circumstance tending to prove guilt only where it appears that the defendant acquired the possession by his own act or with his concurrence or knowledge. The possession must be personal and exclusive, and must be such as to preclude the inference that the stolen property was in the possession of any other person than the defendant."
The court modified the instruction by leaving out the words "and must be such as to preclude the inference that the stolen property was in the possession of any other person than the defendant," and in lieu thereof added: "Or it must be the possession of some person or persons by the consent and will of the accused, and in either case the possession must involve a distinct and conscious assertion of possession by the accused."
The modification was proper. It clearly appears therefrom that if the property had been found in the possession of a third party without the knowledge of defendant, and with no assertion of possession on his part, such circumstance would not tend to prove his guilt. The jury were clearly told that the possession of a third party must involve a distinct and conscious assertion of possession by the defendant. Of course, *686 the possession of a third party by the consent and will of defendant and for his benefit would be his possession. The court instructed the jury: "The court further instructs the jury that the distinction between an accessary before the fact and a principal in case of a felony is abrogated, and all persons concerned in the commission of a felony, whether they directly committed the act constituting the offense, or aided or abetted in its commission, though not present, shall be prosecuted, tried, and punished as principals."
This instruction was erroneous as held by this court in Peoplev. Dole,
And the court further instructed the jury that the burden was upon the prosecution to prove "that the calves were stolen by the defendant and by no other person; or that they were stolen by the defendant and another person or persons who had conspired together to commit the crime; or that they were stolen by some other person or persons, while the defendant aided and abetted such other person or persons in stealing them."
The jury could not, in view of these instructions as a whole, have believed that defendant could be found guilty for merely aiding innocently and without guilty knowledge or intent in the commission of the offense charged.
We advise that the judgment and order be affirmed.
Gray, C., and Haynes, C., concurred.
For the reasons given in the foregoing opinion the judgment and order are affirmed.
Van Dyke, J., Garoutte, J., Harrison, J.
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