People v. Disperati
Before: Kerrigan
Synopsis
Criminal Law—Grand Larceny of Livestock—Improper Conviction —Subsequent Deception and Sale of Stolen Property.—A defendant accused of grand larceny of livestock, who is shown to have had no connection with the original taking thereof, nor to have aided or assisted therein, but who wholly subsequent to the taking received the stolen property in the county of the taking, and transported the same to another county in which he sold the same, cannot be convicted of grand larceny either in the county of the taking nor in the county of the sale, but can only be punished under seetion 496 of the Penal Code for receiving and selling personal property knowing the same to have been stolen.
Id.—Selling Stolen Property With Intent to Defraud Owner.—The subsequent sale of the stolen property by the receiver thereof, with intent to defraud the owner of its value, does not make the receiver guilty of the crime of grand larceny.
Id.—Essential Elements of Larceny.—In order to constitute the crime of larceny, it is essential that the accused should have taken or aided and abetted in taking the property from the possession of the owner. No subsequent connection with the property can make one guilty of theft who had no connection with the original taking. Id.—Conflicting Evidence—Duty of Court to Instruct Jury Fully. Even if there had been some evidence tending to connect defendant with the original taking, yet in ease of conflicting evidence tending to show only the reception and disposition of stolen goods, it would be the duty of the court to instruct the jury that the defendant was not on trial for receiving stolen property, and that unless they were satisfied that he was actually concerned in the commission of the larceny, or not being present advised and encouraged its commission, they should find the defendant not guilty.
Id.—Venue of Crime of Receiving Stolen Property.—Receiving stolen property is not one of the crimes which may be tried in any county to which the receiver thereafter removes the same, under section 786 of the Civil Code, and the defendant should be indicted for receiving the stolen property in the county where he received the same.
KERRIGAN, J.
The defendant was informed against for the crime of grand larceny. Upon his trial he was found guilty as charged, and sentenced to imprisonment for the term of seven years. He prosecutes this appeal from the judgment.
It appears from the record that the property stolen was certain livestock belonging to Miller & Lux in the county of Madera, and that this is the second prosecution of defendant arising out of that transaction. The first trial was had in
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Madera county, and the defendant was convicted, but upon appeal to the district court of appeal of the third district the judgment was reversed and the cause remanded for a new trial. Thereafter the prosecution of defendant in that county was abandoned, and an information was filed against him in Fresno county, on the theory that after he had committed the larceny in Madera county he removed the stolen property to the county of Fresno.
The evidence in the case shows that the defendant neither took nor assisted in the taking of the property from the possession of the owner, but that subsequent to the perpetration of the larceny he received it, and later sold it to one Rosconi, and was instrumental in transferring it from Madera, where he had kept it, to Fresno county where Rosconi lived. Aside from the possession of property recently stolen (which of itself in this state is not sufficient to justify a conviction) there is nothing in the case to show that the defendant was guilty of grand larceny unless, as claimed by the attorney general, the crime was committed by defendant when he sold the stock to Rosconi. The contention here is, and was the theory of the prosecution in the trial court, that while the defendant in the first instance may have been guilty only of receiving stolen property knowing the same to have been stolen (Pen. Code, sec. 496), when he afterward sold that property to Rosconi, with the intent to defraud Miller & Lux of its value, he thereupon became guilty of the crime of grand larceny.
This position we think is untenable, and it was so held on the appeal of the former ease.
(People
v.
Disperati,
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