People v. Smallman
Before: Thornton
Synopsis
Larceny—Definition—Criminal Law.—Upon an indictment against S. and his wife for larceny of money, the evidence for the prosecution showed that the prosecuting witnesses delivered money to S. for Mrs. S., according to a previous understanding with the latter that she should invest the money in stocks for the use of the prosecuting witnesses, and tended to show that the defendants obtained the money without any intention of investing it as agreed, and with the fraudulent intent of converting it to their own use. The Court below refused to advise the jury to acquit on the close of the testimony for the prosecution; and, upon the close of the trial, in effect, charged the jury to find the defendants guilty, if they found that they obtained the money in the manner and with the intent above stated, and, afterwards refused a motion for a new trial based on the ground that the verdict was contrary to the evidence; thus, in effect, deciding that the facts stated constituted larceny. Held, not to be error.
Id.—In.—Id.— Supreme Court—Jurisdiction—Question of Law—Definition—Conflict of Evidence—Constitutional Law.—Under the late Constitution, the Supreme Court had appellate jurisdiction in criminal cases, on questions of law alone; and such a question is presented—where the verdict is complained of as being contrary to the evidence—only where there is no evidence to establish the charge; and not where there is evidence tending to prove it.
Id.—Evidence—Criminal Law—Bes Gestíe.— Upon the cross-examination of a witness for the prosecution, an affidavit made by the witness was offered by the defendant, for the purpose of impeaching her testimony. Held, that the circumstances under which the affidavit was made, and the conversation had by the witness with the person at whose instance it was made, were admissible as parts of the transaction.
Id.—Id.—Id.—Id. — Declarations. — Upon the cross-examination of the prosecuting witness, the defendants drew out that the witness had consulted one S. in relation to the transaction out of which the indictment grew, and in part developed what had occurred between them. Held, that the plaintiff was entitled to call out all that took place between the witness and S., in the consultation referred to.
Thornton, J.: The defendants were indicted by the Grand Jury of the City and County of San Francisco for* the crime of grand larceny. They were charged in the indictment with feloniously stealing, taking, and carrying away, contrary to the form, etc., 100 pieces of the current gold coin of the United States of the denomination of double eagles, or $20 pieces, and of the value of $20 each, said money being the property of William Cooper and Margery Wells Cooper. The defendants pleaded not guilty to the indictment, and on the trial the jury found them guilty as charged. They then moved an arrest of judgment, and for a new trial, which were denied. Sentence was pronounced by the Court, from which sentence, and the order denying a new trial, this appeal is prosecuted.
On the trial several exceptions were reserved to the admissibility of the evidence, which we will proceed to consider. The above-named Margery Cooper was called as a witness by the [189]prosecution, and examined. On her cross-examination, counsel for the defendants offered, for the purpose of affecting her credibility, an affidavit made and signed by her on the 16th day of January, 1879. It also came out on the cross-examination that the affidavit was written by one Carey, who presented it, and read it to the witness, when she signed it, and swore to it. The evidence tended to show that at this time Carey was employed by the defendant, Amelia Smallman, to draw this affidavit, and have it signed and sworn to by the witness; afterward there was direct testimony to this effect. On the redirect examination, the witness was. asked as to the circumstances under which the affidavit was made, and what conversation she had with Carey about it.
The defendants objected to any conversation of witness with Carey in relation to this affidavit, which was had in the absence of defendant Amelia. The Court overruled the objection, and admitted the evidence, to which the defendants excepted. We see no error in this ruling. It was proper to ask the witness as to every matter which occurred in relation to, and in connection with, the affidavit. The conversation had about it while it was being prepared and signed, and the oath made to it, were parts of the transaction, which were as properly admissible as the affidavit itself.
The defendants, on the cross-examination of the above-named William Cooper, drew out the fact that the witness had consulted, in relation to the transaction out of which the indictment grew, F. E. Southerland, and in part developed what had occurred between them as to the matter. The plaintiff was permitted to call out, on cross-examination, against the objection and exceptions of defendants, all that had taken place between the witness and Southerland in the consultation or consultations inquired about. We see no error in this ruling of the Court.
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