People v. Devine

Sharpstein, J. “ Larceny is the felonious stealing, [228]taking, carrying, leading, or driving away the personal property of another.” (Pen. Code, sec. 484.) In this case the evidence is sufficient to justify a jury in finding that appellant took and carried away the property of another; but insufficient to justify the finding that appellant feloniously stole the same. Therefore the evidence is insufficient to justify the verdict of guilty of larceny against the defendant, and for that reason he is entitled to a new trial. The evidence shows that the appellant and Robert Doherty occupy adjoining tracts of land, and that each of them keeps upon his own tract a considerable number of hogs. Appellant, wishing to sell some of his hogs, directed two men in his employment to collect his hogs in a pen or inclosure, so that he might select therefrom some denominated “ feeders,” to take and sell to a butcher by the name of Sam Bee, whose place of business was several miles distant from appellant’s farm. Out of forty or fifty-hogs in the corral, appellant, with the assistance of his son and the two men who had driven the hogs into the inclosure, selected eleven “feeders,” which were loaded on a wagon, and conveyed to Sam Bee’s place, and sold to him by appellant. There is evidence tending to prove that three of these eleven “ feeders ” were marked with Doherty’s mark, which differed materially from appellant’s mark, but the difference was not noticed by any save one of several witnesses who had equal opportunities with the appellant of observing the difference in the marks. And the witness who testified to having detected the difference does not state that he mentioned the fact to appellant or any one else. Sam Bee, who purchased the hogs from appellant, testified that he did not observe the difference in the marks until his attention was called to it by William Doherty, about a week after the hogs were sold and delivéred to him, Bee, by appellant. Ro part of the transaction was -.characterized by secrecy, or attempted concealment. Appellant acted throughout as he would be expected to act if he thought he was dealing with his own property, and the evidence tends strongly to prove [229]that he really and honestly so thought. We think that the evidence, coupled with the presumption of innocence, which attends the accused from first to last, sufficient to overcome the presumption of a guilty intent, arising from a wrongful appropriation of the property of another. He was not informed that any of the hogs he carried away and sold were not his own, and all the evidence tends to prove that he honestly believed they were all his own. There is no evidence to the contrary. The rule applicable to such a case is illustrated by Sir Matthew Hale as follows: “If the sheep of A stray from the flock of A into the flock of B, and B drives them along with his flock, or by pure mistake shears him, this is not felony; but if he know it to be another’s, and marks with his mark, this is an evidence of a felony.” (1 Hale P. C. 507.)