People v. Vaughn

THE COURT.

With reference to the point made upon the sufficiency of the information, we are satisfied that the demurrer was not well taken. The information follows the language of the statute and therefore, in our judgment, is sufficient.

In regard to the alleged misconduct of the district attorney, we think that while the comment of that officer upon the conduct and character of the defendant may have been somewhat harsh, nevertheless it was apparently but a deduction

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from the evidence; and this the prosecuting officer was entitled to make. He had a right to draw any inference from the testimony that in his judgment was logical. Moreover there was no request to the trial court to admonish the jury to pay no heed to the alleged misconduct. It has been the rule of this court—and we think the settled rule generally— that even though misconduct be conceded, in the absence of a request to the court to admonish the jury to pay no heed to it, complaint of the same will not be heard in this court.

Coming to the point that the evidence is insufficient to sustain the verdict, we are satisfied that if the transaction involved in the information and established in evidence at the trial had been completed to the extent of the defendant obtaining the money of the complaining witness and retaining it for her own use, she would have been guilty of the crime of grand' larceny by trick and device. The fact that she was prevented from the commission of the crime by any circumstances whatever does not alter the situation; and if upon the completion of the transaction she would have been guilty of the crime of grand larceny by trick and device, then we are of the opinion that the evidence is sufficient to sustain the finding of the jury implied from their verdict that she was guilty of an attempt to commit grand larceny by the same means.

It is true that the inference might perhaps be drawn from the evidence that it was the intent of the defendant to get the money of the complaining witness under the pretense that she had some secret influence and would use it and the money to procure a dismissal of a criminal prosecution then pending against the son of the complaining witness. But on the other hand, that her intent was to keep the money for herself rather than to resort to any such course, we think may be fairly inferred from all of the evidence. True, a verdict of “not guilty’’ might as well have been founded upon the same evidence; but that was a question for the jury and not for this court; and if there is any evidence at all to sustain the theory suggested by the people and upon which the case was tried and the defendant convicted in the lower court, the verdict must stand as far as this corirt is concerned.