People v. Raischke

Foote, C. XThe defendant was convicted of grand larceny; from the judgment rendered against him and an order denying a new trial, he appeals.

The case has been here before (73 Cal. 378). • The defendant was then awarded a new trial, because of an erroneous instruction granted by the court below.

It was contended on that appeal that there was no evidence of any larceny of the goods charged to have been stolen by the defendant, and the same point is made now. Upon that contention the appellate court determined adversely to the defendant.

We have carefully examined and compared the evidence as set out in the transcript of both appeals, and find no material difference so far as the main points of the evidence are affected. That which was testified to by Bernard, the owner of the goods alleged to have been taken and stolen, as it appears in the present record, is not so full in some particulars as on the former trial. Bernard was alive at the time, but died before the second trial was had, and his evidence was introduced at the later period in the form of a long-hand transcription of the reporter’s notes of his evidence taken before the police court on the preliminary examination of the defendant, properly certified and filed.

This evidence indicates that the defendant, by preconcerted arrangement with two other persons claimed to be his partners, endeavored to buy the go'ods in question in the first instance; that Bernard, the owner, was willing to sell them, provided the title to the articles should remain, as it then was, vested in him, until they were paid for, and with this understanding he delivered the goods to the two other persons, Lewandowsky and Fur-[503]lung, the alleged partners of the defendant, the latter having in the beginning of the negotiation proposed to purchase the goods to be used, as he represented, in a legitimate business, to be carried on by the three jointly; that the goods were first taken to the premises whereon these three persons were together represented to and supposed by Bernard to have set themselves up in business, and that Bernard took a note for the price of the goods from Lewandowsky and Furlong.

A short time after this delivery of the goods, having his suspicions aroused to the effect that a swindle had been perpetrated upon him, Bernard sought the aid of the police with a search-warrant, and after Raischke, the defendant, had denied having any of the goods on his premises, some of them were found thereon, secreted in various places, a portion of them in a potato-patch buried nine or ten inches in the earth.