People v. Maxwell

By the Court, Sanderson, C. J. The defendant and one Morgan were jointly indicted for the crime of grand larceny, and, upon their application, were allowed separate trials. It appears from the testimony on the part of the prosecution, that the stolen property, eonsist[15]ing of a rifle, vest, razor, shot pouch, and shirt, was taken from the cabin, of the prosecutor, near Auburn Station, in Placer County, during his absence, on the 30th day of December, A. D. 1862. Ro one was seen to take it, nor was the defendant or Morgan seen in the vicinity of the cabin on that day. About dusk of the same day, they were seen travelling in company, at the Rorth Fork bridge, several miles from Auburn Station, the defendant carrying a gun upon his shoulder. They passed the night at a hotel about five miles beyond the bridge, and on the next day proceeded on to Forest Hill. When they arrived at this place Morgan had the gun in his possession, and gave it in pledge to the landlord of the hotel at which they stopped, as security for their board and lodging. At this hotel both parties were arrested. From the testimony of the officer who made the arrest, it appears that all the stolen property was found in the possession of Morgan, except the gun, which was in the possession of the landlord. Morgan, who was examined as a witness on the part of the defence, testified that he and the defendant left San Francisco in company, to go to the mines; that the road forked a few miles from Auburn, and, by mistake, they took the road leading to Auburn Station, and had nearly reached that place before they were informed of their error; that he then told Maxwell that he would go by the station, as it was not much out of the way; that he and the defendant then separated. The defendant went across the country in the direction of the Auburn road, while he took the route by the station; that on his way he went to the cabin of the prosecutor, and committed the larceny in question; that when he overtook the defendant he told him, in response to an inquiry as to where he got the gun, that he had found a friend at the station, who thought he might have use for it in the mountains, and had given it to him; that he alone committed the larceny, and without the participation or knowledge of the defendant, who knew nothing [16]about it until after their arrest. Such being the facts, the following instruction, among others, was given to the jury by the Court: “ Should you believe, from the evidence, that the witness Morgan stole the property described in the indictment, and that the same was found in the possession of this defendant, and that this defendant and Morgan were associated together, and that the defendant knew that the property was stolen, then and in that case he is equally guilty in the eye of the law, and your verdict should be guilty.” This instruction is assigned as error.