People v. Ballo

[371]

HART, J.

The defendant was convicted of the crime of grand larceny, and from the judgment of conviction and the order denying him a new trial he prosecutes this appeal.

The assault upon the judgment and order is founded principally upon alleged errors of the trial court in the statement of the law to the jury.

The facts are briefly these: The complaining witness, one G. Saloni, an Italian laborer, went to the city of Stockton with an acquaintance of his in the month of December, 1911. They registered at the Roma Hotel, which was conducted by one of their countrymen. Saloni had for some time prior to his arrival at Stockton worked as a laborer for the Feather River Lumber Company, near Portola, in Plumas county, and when he reached Stockton had approximately $200, a portion of which he carried in two checks—one for $57 and another for $54.80. These checks he deposited, for safekeeping, with the proprietor of the Roma Hotel. It appears that, shortly after his arrival at Stockton, he began drinking rather heavily, and remained more or less in a state of intoxication for several days. While thus conducting himself, he made the acquaintance of the defendant, with whom thereafter he had conversations and drank several times. On the morning of the Thursday following the date of his arrival at Stockton, upon going out on the sidewalk in front of the Roma Hotel, he again met the defendant. Ballo invited Saloni to join him in a drink, and the two, with a third party, went to the Gem saloon for that purpose. After securing a drink, the defendant and Saloni returned to the sidewalk, when the former declared that he expected some mail and that he thought he had better go to the postoffice and ascertain whether any was awaiting him. Accordingly, accompanied by Saloni, he left the place at which they were standing for the ostensible purpose of going to the postoffiee. He took Saloni through various streets and over a devious route until they reached the corner of two streets at which was located a feed stable. There they met one Manuel Schenone. It appears that, as the defendant and Saloni were in the act of passing Schenone, the latter accosted them by the inquiry, “You are Italian boys, too, aren’t you?” The defendant and Saloni, in reply, said that they were, whereupon Schenone exhibited to them what purported to be a bill of the denomination of $100 and