People v. White

[222]

HART, J.

This is an appeal by the defendant from a judgment of conviction of the crime of grand larceny and from an order denying his motion for a new trial.

The information by which the defendant .was accused and upon which he was convicted of said crime alleges that, on or about the fifteenth day of June, 1914, in the county of San Joaquin, he feloniously stole and drove away five head of cattle, which were then the personal property of one Isaac Kirk.

The sole proposition upon which the defendant bases his claim for a reversal is that the people failed to show that a crime had been committed, or, in other words, failed to establish the

corpus delicti.

This contention cannot be maintained, as a brief examination of the evidence will verify.

One Mosely testified that the defendant called on him some few days prior to the date of the commission of the crime charged in the information and proposed that he (Mosely) join him (the defendant) in taking from the farm of Isaac Kirk a number of cattle, selling the same and dividing in equal proportions between themselves the proceeds of such sale. The witness readily acquiesced in the proposition and, accordingly, during the night of the fifteenth day of June, 1914, the two went to the farm of Kirk and drove away five head of cattle, some of which bore the brand and ear-mark of said Kirk. The cattle were driven by the men to a point several miles distant from Kirk’s place and were placed in a pasture. A few days thereafter the defendant sold the cattle to one Patrick Lynch, a farmer living a short distance from where the cattle had been put to pasture by Mosely and White. The defendant received the money on said sale and gave Mosely approximately an equal share of the same.

A number of witnesses testified to the fact of having seen White and Mosely on the night mentioned driving the cattle from the direction of Kirk’s farm.

Shortly after the cattle were taken Kirk called at the district attorney’s office, and to that official stated that the cattle had been stolen and driven from his place. At this time Kirk, who is a man of advanced years, did not know who had stolen the stock and had no suspicion against any particular person in connection with the larceny. It appears, however, that the sheriff and district attorney, having previously been apprised of the larceny, started and prosecuted an investigation, with