People v. Kerrick

[47]

GRAY, C.

The defendant was convicted of the crime defined in section 357 of the Penal Code, of altering and defacing the marks and brands on certain twenty-two head of cattle with intent to steal the same and prevent the identification thereof. He appeals from the judgment and from an order denying him a new trial.

At the trial it was admitted by the prosecution that the defendant had theretofore been duly tried upon an information charging him with the larceny of the same cattle referred to in this information, and that at such former trial the same evidence was used by the prosecution concerning the alteration of the marks and brands of the cattle in question as was presented by the people in this trial. Also that said former trial resulted in a disagreement of the jury, no verdict being found. The defendant then, in support of his plea of former acquittal and once in jeopardy, offered to prove that on motion of the district attorney, made on the ground that in his opinion the evidence that could be adduced upon a retrial would be insufficient to convict the defendant, a judgment and order of the court was duly made and entered dismissing the information in said grand larceny case. The court excluded the offered evidence; and upon this ruling arises the only question presented upon this appeal.

The action of the court in excluding the offered evidence may be upheld on two grounds:

1. No conviction could be had of the crime defined in section 357 of the Penal Code under an information charging only grand larceny. The former crime is not in any sense a necessary element of the latter, nor can it be said to be “necessarily included” in the latter. Section 1159 of the. Penal Code provides that “the jury may find the defendant guilty of any offense, the commission of which is necessarily included in that with which he is charged.” To be “necessarily included” in the offense charged, the lesser offense must not only be part of the greater in fact, but it must be embraced within the legal definition of the greater as a part thereof.

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To entitle a defendant to the plea of

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