People v. Kawananakoa

THE COURT.

Defendant was charged by information with the crime of grand larceny. He was tried, convicted, and sentenced under the indeterminate sentence law. He now appeals from the judgment and from an order denying his motion for a new trial.

The information charged the defendant with having, on or about November 10, 1916, at the city and county of San

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Francisco, feloniously taken an electric lamp, one lot of silverware, one lot of cut glass, certain pictures, a sewing-box, and one lot of linen, the same-being the personal property of C. B. Blanchard.

Defendant makes no point on this appeal other than that of the sufficiency of the evidence. As to this he claims that the evidence is insufficient in four respects, namely: (1) That there is no proof that the property in question was that of the complaining witness; (2) that the evidence failed to show that the property was stolen by defendant from Blanchard; (3) that the evidence was insufficient to show that the value of the articles stolen was more than fifty dollars; (4) that there is a variance, in that the crime proven is that of embezzlement and not larceny.

An examination of the record discloses that there is no merit in points 1, 2, and 3. As to the fourth, appellant’s contention is that the defendant was shown to be a servant who fraudulently appropriated property which had come into his care by virtue of his employment as such servant, and that this brought him within the provisions of section 508 of the Penal Code. But in making this contention counsel overlooks the fact established by the complaining witness’ testimony, that the defendant was a mere caretaker of his premises, whose principal duty was to see that no one took anything out of the house. Quoting the record: “A. He was not hired for a servant. He was hired for a caretaker. Q. And as a caretaker, what were his duties* A. To look after the house and see that it was kept clean, and that nobody took anything out of it, principally.”

Counsel erroneously assumes that because the defendant was possibly a custodian of $he property, the same was in his possession; but he overlooks the distinction between possession and custody. This distinction is quite appropriately pointed out in Bishop’s New Criminal Law, volume 2, page 486:.