People v. Diamondstein

JAMES, J.

Appellant was convicted of the crime of grand larceny, the particular charge being that he feloniously took and carried away one electric motor, the property of the county of Ventura, of the value of $75. He appeals from the judgment and from an order denying his motion for a new trial.

[1]

It is first contended that the information was insufficient in its allegation as to the ownership of the property alleged to have been stolen. The language of the information was that the motor was the property of “Ventura County, a political corporation in the State of California.” The contention of appellant under this head is that, as the Penal Code, section 484, defines larceny as “the felonious stealing, taking, carrying, leading, or driving away the personal property of another,” it is not sufficient to show ownership in a county. As defined by section 7 of the Penal Code, the word “person” includes a corporation as well as a natural person. While the political subdivision of the state denominated a “county” is not in strictness a corporation, at the same time it requires no stretching of the- plain intent of the criminal statute to say that it was designed to make punishable the stealing of personal property from any ownership whatsoever. Appellant’s counsel argue that the ownership should have been alleged to be in the taxpayers of the county. If, indeed, it may be said that the taxpayers in their collective capacity do hold the ownership of property used in the conduct of the county government, then we may at once answer that the charging of such ownership as being in the county itself is no different from charging it in the manner suggested, for the term would then mean the same thing. We are only conceding for the sake of the argument that the taxpayers collectively may be said to ow3i the county’s property, but think that this is not true as a legal proposition—we think it is not more true that the ultimate ownership resides in the taxpayers than that it may

[492]

reside in the electorate.

[2]

Furthermore, unless there is a material variance between the ownership charged and that proved, the manner in which such ownership is alleged is not important, further than to show that the property taken was not the property of a defendant charged with larceny. Section 956 of the Penal Code provides that “when an offense involves the commission of, or an attempt to commit, a private injury, and is described with sufficient certainty in other respects to identify the act, an erroneous allegation as to the person injured, or intended to be injured, is not material.” Respondent cites a case which is directly in point and in which this subject is given extended discussion, that being the case of