People v. Horton

[35]

ALLEN, P. J.

Appeal by defendant from a judgment and an order denying a new trial upon a conviction of grand larceny.

That the verdict was warranted is most apparent. The evidence in the record is convincing as establishing that defendant and his nephew took the horse in question from the ranch where it was being pastured, brought it to the city of Los Angeles, and sold it for $115; that the negotiations leading up to the sale were carried on by both uncle and nephew, they claiming to be partners, and when the same were concluded, the nephew went into an office and signed a bill of sale, using a fictitious name; that the money was paid to the nephew, who went back to the buggy in which defendant was seated and drove off with him; that shortly afterward the defendant, who had before that time been without money, was seen with gold coin in his possession, and told an acquaintance that the horse in question belonged to him, and that he had sold it for $115. Defendant had during an earlier hour of the day sought to sell the horse to others and represented to a witness that the horse was one of a large band owned by him and his nephew.

Upon .the trial the court charged the jury by instruction VI: “You are instructed that the mere possession of stolen property, unexplained by the defendant, however soon after the taking, is not sufficient to justify a conviction; it is a circumstance which, taken in connection with other testimony, is to determine the question of guilt. Yet, if you believe from the evidence that the defendant was found in the possession of the property described in the information, or claiming to be the owner thereof, after the alleged taking, this is a circumstance tending in some degree to show guilt, but not sufficient, standing alone and unsupported by other evidence, to warrant you in finding him guilty. There must be, in addition to proof of possession of stolen property, proof of corroborating circumstances tending of themselves to establish guilt. These corroborating circumstances may consist of acts, or conduct or declarations of the defendant, or any other circumstances tending to show the guilt of the accused. If the jury believe the property was stolen, and was seen in the possession of defendant shortly after being stolen, the failure of the defendant to account for such possession, or to show