People v. Pico

Myrick J.: The defendant was by information accused of grand larceny, in that he “ did feloniously take and steal one roan horse,” the property of one S. P. Stockton. The plea was not guilty. The defendant was convicted as charged.

1. It appears from the bill of exceptions that on the trial the people gave evidence tending to prove that the defendant took from the Normal School grounds in San Jose, a roan mare, harness and buggy, belonging to S. P. Stockton, and after using the same in the public streets of San Jose, and declaring that the mare belonged to one Archer, left the harness and buggy by the side of a street, and sold the mare for ten dollars and appropriated the proceeds to his own use. The defendant moved the Court to instruct the jury to acquit him, on the ground of variance, in that he was charged with stealing a horse, while the proof showed the animal taken was a mare.

This was refused. Although the Courts of some of the States have held, under a statute similar to that or this State (Section 487, subdivision 3, Penal Code), where both words “horse” and “mare” are used, the proof must agree with the indictment as to the sex of the animal, yet, as at common law the word “horse ” was used in its generic sense, and was held to include all animals of the horse species, whether male or female, we are of opinion that the Legislature of this State, in using the word “ mare,” did not intend to modify or change the common law rule, but inserted the word possibly for more definiteness.

2. The defendant introduced evidence tending to prove that he was insane before, at, and after the taking, and at the time of the trial. No suggestion was made by counsel then or at any time before or during the trial, that defendant was not then in a condition to be tried. The District Attorney, during the trial, inquired of counsel for defendant if he asserted that defendant was then insane, to which one of the defendant’s attorneys replied that they did not, and the other [53]stated that they claimed he was at the time of the alleged offense and still was insane. The bill of exceptions states that, “it did not then or at any time during the trial appear to the Court that there was any doubt that defendant was not sane.” The defendant’s attorney asked a witness: “ What do you say as to his general reputation, whether sane or insane ?” An objection was sustained. Insanity is not to be proven by general reputation. The1 ruling was correct.

3. For the purpose of showing the insanity of the defendant, a witness testified to his throwing away a suit of clothes. On cross-examination it appeared that the witness had no personal knowledge of the clothes being thrown away, or of the reason therefor—he knew of the circumstance only by hearsay. This testimony was, on motion, stricken out. It needs no authority, save well-known principles, to show the correctness of this ruling.