People v. Lawyer

SPENCE, J.

Defendant was convicted on the charge of grand theft and he has appealed from the final judgment of conviction and the order denying his motion for a new trial.

Defendant was accused of stealing a cow belonging to one George McCoy, a farmer residing near Pittsburg in Contra Costa County. On January 23, 1934, Mr. McCoy had ten cows and four calves. On the morning of January 24th he found that one of his cows had disappeared. The missing cow was a large “brockel face” cow with a tear on her left ear. This cow had been raised by Mr. McCoy and was well known to the family and neighbors. Search of the ranch proved futile and an examination was made of the fences. The gate which was farthest from the farm house was found to have been closed in a manner different from the manner in which Mr. McCoy had ever closed it. Fresh tracks were found near the gate. Mr. McCoy and a neighbor traced the tracks of a small horse leading from said gate to the pasture and also traced the tracks of the same horse together with the tracks of a cow leading back from the pasture to said gate. From the gate these tracks led along a road to a point where automobile tracks were found. At this point there was a mark that looked as though some weight had been put upon a board. Here the tracks ended. On February 16th Mr. McCoy, accompanied by others, located the cow at appellant’s place near Newark in Alameda County. They also found there a sorrel horse whose tracks corresponded to those found at Mr. McCoy’s place. There were

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certain peculiarities to these footprints which offered a means of identification. There was also found on appellant’s place a Cadillac car with a stock trailer attached. This trailer was large enough to hold three small animals or two large ones and it could easily have carried a cow and a saddle horse. When the cow was returned to the McCoy ranch she immediately went to her calf which tried to suck her, hut the cow was then dry. Numerous witnesses, including the members of the McCoy family and several others, identified the cow as the one belonging to Mr. McCoy. Upon the cow was found the brand “WL”, which brand was not upon the cow prior to her disappearance. Several witnesses testified that this was a fresh brand. The defendant claimed the cow as his own, but gave conflicting statements regarding the manner in which he had acquired her. Upon the trial evidence was introduced by the defense for the purpose of showing that the cow belonged to defendant and also for the purpose of proving an alibi. The defendant did not take the stand. His alibi witnesses were his wife and sister-in-law, while others gave testimony tending to prove defendant’s ownership.