People v. Cuin

JAMES, J.

Defendant was convicted of the crime of grand larceny and sentenced to serve a term in the state penitentiary. There was a motion for a new trial and an appeal was then taken from the judgment and from the order denying that motion.

The subject of the alleged larceny was a certain cow belonging to one Lammers. By the testimony it was shown that Lammers, being the owner of a lot of cows, leased eleven of

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them to a Mrs. Elliott who was conducting a dairy a short distance from the town of El Centre in Imperial County. Mrs. Elliott received the cows in July, 1914. In September Hammers visited the Elliott Ranch and found only nine of the eleven cows there. He was told that the two had jumped out of the field into another pasture. At another time, as Hammers testified, Mrs. Elliott stated that the two cows had strayed off. Upon making a search for the missing cows Hammers discovered on the ranch of one.Gibson, which was several miles away, the carcass of a cow, with the hide, head, and horns, which he identified as being those of one of the missing cows. The color of the hide, he testified, was like that of his cow, but he particularly based his identification upon the peculiar shape of one of the horns which was misshapen or “drooped.” By other testimony it was shown that Gibson had purchased this cow from the defendant and that the animal had shortly thereafter been mysteriously shot, from the effects of which it died within a few days. It appeared that the defendant had from time to time, for a number of years, been in the employ of Mrs. Elliott and that he was in her employ at the time when the two cows were missed from the herd. Hammers testified that all of the cows which he leased to Mrs. Elliott but one were without horns, and that he had agreed with Mrs. Elliott that she might dehorn that animal and that he would allow her one dollar therefor, which he afterwards paid. Mrs. Elliott testified that the animal was dehorned by the defendant at her order and that she saw the “bloody horns” after the operation had been performed and also milked the cow after her horns had been removed. The father of the defendant testified to having sold to defendant a cow answering the description of the one which defendant sold to Gibson. This statement does not include all of the evidence, but sufficient is shown to make it appear that there was a decided conflict in the testimony as to whether the cow which defendant had sold to Gibson was the cow of Hammers. If the testimony as to the dehorning of the animal was true, then of course the head and horns inspected by Hammers could not have been those of either of the animals which had been separated from the lot of eleven cows leased to Mrs, Elliott. Under this state of conflict of evidence we think the court committed prejudicial error in allowing certain testimony to be admitted over the objection of the appellant. It appeared