People v. Cheong Foon Ark

Morrison, C. J.: The defendant was convicted of the crime of grand larbeny, and larceny is defined by Section 484 of the Penal Code to be, “ the felonious stealing, taking, carrying, lending, or driving away, the personal property of another.” The Court instructed the jury as follows: “Grand larceny is the stealing, taking, or carrying away, the personal property of another, of the value of more than fifty dollars,”—omitting the word felonious. The charge was erroneous, as it omitted that word.

The Court told the jury that grand larceny is the stealing, taking, or carrying away (in the disjunctive), the property of another. That is not the definition given by the statute, and is in no sense a correct definition of the offense. One person may take or carry away the property of another, of the value of over fifty dollars, without being guilty of any offense whatever. But if he does the act feloniously, the statutory crime is committed.

The Court further instructed the jury as follows: “The prosecution in a criminal case is bound to make out its case beyond a reasonable doubt. A mere preponderance of testimony is not sufficient. A preponderance of testimony is sufficient, as I understand the decision of the Supreme Court, to make out the innocence of the defendant.”

The learned Judge misunderstood the rule as laid down by the Supreme Court. It is true that such has been held to be the rule in the single case of homicide; and, in that particular case, because Section 1105 of the Penal Code provides that where the commission of the homicide by the defendant has been proved, the burden of proving circumstances of mitigation, or that justify or excuse the killing, devolves upon the defendant; but as to other crimes, in respect to which there is no similar statutory provision, a different rule exists, [529]as vas held" by this Court in the case of People v. Marshall, 8 Pac. C. L. J. 841. Mr. Justice Boss, delivering the opinion in that case, says: “It is a cardinal rule in criminal cases that the burden of proof rests on the prosecution. It would manifestly be shifting this burden from the prosecution to the defendant, to require the latter to establish his defense by a preponderance of evidence, and would deprive him of the doctrine of a reasonable doubt, to the benefit of which he is justly and everywhere held entitled.”