People v. Christensen

Foote, C. The defendant was convicted of grand larceny, and she appeals from the judgment therein rendered, and from an order refusing a new trial. It is primarily claimed in her behalf that the evidence is entirely insufficient to support the verdict. The record shows very clearly that the defendant was positively identified by the prosecuting witness as the person who stole his money, although he was somewhat intoxicated at the time, and Annie O’Farrell, a witness for the defendant, although she positively swears that the defendant stole nothing, nevertheless states that she, the defendant, and the prosecuting witness were in company with each other at saloons (naming them) at the time [570]when the money is alleged to have been stolen, and although several witnesses for the defense swore to facts which negatived such statement of the prosecuting witness, yet, as the jury saw and heard those who testified before them, and resolved the conflict between them against the innocence of the defendant, we are not prepared to say that the verdict was clearly wrong. It is also very earnestly urged that the court erred in not permitting the defendant to testify in her own behalf when she desired to do so. The evidence had all gone to the jury, and the court had proceeded with its charge to that body as to the law governing the case, when this offer was made. It thus became discretionary with the court to grant or refuse the request, and we cannot declare that its action was an abuse of its discretion. (People v. Ross, 65 Cal. 105; Pen. Code, secs. 1093, 1094.)

Error' on the part of the court is alleged in its instruction to the jury, that “ unless the prosecution has proved beyond a reasonable doubt that the defendant feloniously stole the money of the complaining witness, it is your duty to acquit the defendant.” This, it is said, was not a definition of larceny, unless of larceny in general, and that, as larceny consists of grand and petit larceny, the instruction was defective. In answer to this, it may be said that the defendant asked for no further definition of the offense; the information charged grand larceny, and the proof showed beyond cavil or question that if any larceny was committed it was grand larceny. This being so, the defendant could not have been prejudiced. Further, it is said that the court assumed that the prosecuting witness had money on the occasion of the alleged theft. We do not so understand the instruction. In effect, it conveyed the idea that unless it is proved beyond reasonable doubt that the prosecuting witness had money which was stolen by the defendant as charged, they should acquit. This was entirely proper. It is also said that the court did not define what a reasonable