People v. Phillips

JAMES, J.

Appeal from a judgment of imprisonment and from an order denying defendant’s motion for a new trial.

Defendant was prosecuted agreeable to the provisions of section 538 of the Penal Code, which makes the mortgagor of personal property, who sells or transfers the same to another, guilty of larceny, where he fails to inform the person to whom, the sale is made of the existence of the mortgage and also fails to give written notice to the mortgagee of such intended sale.

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The property in question, which was subject to the lien of a chattel mortgage and which it is alleged the defendant sold without giving the requisite notice to either the mortgagee or the purchaser, consisted of three heifers and two cows. The judgment of the court, as entered upon the verdict, was that the defendant be imprisoned in the state prison for a period of three years, and that he pay a fine in the sum of two hundred dollars.

Referring to the evidence, the sufficiency of which is challenged by appellant, it will be sufficient to say that there was testimony relevant and competent to support the allegations of the information as to all material matters charged therein. Under such a state of the case, it is not for this court to revise the finding of the jury on the questions of fact.

Appellant contends that the showing made by him of alleged disqualification of the trial judge as to bias and prejudice, should have been sustained. It appears that the appellant had been a defendant in another case under a similar charge, and that, after conviction and when probation was there being applied for, the judge, being the same judge who sat at this trial, refused to approve an order for probation, and gave it as his opinion in that connection that the defendant should, for the offense there considered, be placed in the penitentiary. Affidavits of the deputy district attorney and of the trial judge were filed, which contradicted the assertion of appellant as to any improper bias or prejudice.

It is urged that defendant should not have been convicted of the crime of grand larceny, because the section of the code under which he was prosecuted makes the commission of the acts charged amount only to “larceny.” In section 538 of the Penal Code it is provided that any person who shall commit any of the acts therein described shall be “guilty of larceny and . . . punishable accordingly.” The property which was the subject of the chattel mortgage, as alleged in the information, consisted entirely of cows and heifers. By section 487 of the Penal Code, when the property stolen is a cow, calf, etc., the crime is declared to be grand larceny. We think that within the meaning of this section, “heifer” is synonymous with “cow,” and it follows, therefore, that if, as section 538 of the Penal Code declares, the selling of mortgaged property without the prescribed notice makes the person-guilty of larceny and makes him “punishable aceord