People v. Fagan

The Court. The defendant, having been convicted of grand larceny, appeals from the judgment and from an order refusing him a new trial. He claims that there was no evidence against him, or if any, none that he had committed the crime of grand larceny.

On October 2, 1891, twenty-one head of cattle were taken from Mr. Weyer’s ranch, about twenty-one miles east of Modesto. The next morning they were seen at Clark’s place, about three miles west of Modesto. They were driven from there by William Ducker, a co-defendant of appellant, and another person not recognized, but who was not appellant. During the night of October 8th eleven head of them were left or found their way to Howard’s ranch, near the Coast Range, how far from Modesto cannot be made out from the evidence exactly, but apparently near fifteen miles. The brands upon these cattle had then been changed and the ears cut off so as [232]to obliterate the marks. Here they were taken in charge by William Grummett, with whose cattle they were found,

October 17th the sheriff of the county, having learned of the larceny from Weyer’s place and of the presence of the cattle at Howard’s, came over, took possession, turned them into Howard’s enclosure and asked Grummett to keep watch of them. At the request of the sheriff Grummett visited defendant’s place, and finding appellant’s son, Frost Fagan, informed him in regard to the cattle. Frost said he owned the stock and would drive them away. On the nineteenth, about midday, some person who was not recognized drove the stock from the enclosure toward a canyon which extends into the Coast Range toward the Fagan place. The sheriff was notified and came over that evening, and with a posse tracked the cattle to Fagan’s cabin in the Coast Range. There he found the appellant, his son Frost, William Duclcer, who had been seen driving the cattle, and his brother in bed, and the eleven head which had been driven from Howard’s place the day before in a corral about fifteen feet from the cabin. Appellant .and his son both said the cattle were astrays. At first appellant said the first time he liad seen the cattle was the morning of the nineteenth, when he discovered them on the range, but didn’t know where they came from; then, correcting himself, he said he had seen them there a week before. When the sheriff was questioning appellant’s son as to how the cattle got into the corral, the appellant said: “If the cattle were stolen Billy Ducker and I must have done it, for Frost had nothing to do with putting them into the corral.” It does not appear how long Fagan had lived at the cabin or had been occupying or claiming it. He told the sheriff that he intended to homestead the place for a hog ranch, also that everything belonged to Frost, as he couldn’t own anything because of his creditors, and that there were some thirty head of stock on the place. Subsequently some five head of the stolen cattle, other than the eleven which had been at the Howard ranch, were found in the Coast Range within five miles of the Fagan cabin. Upon these the brands and ear marks had been changed in the same way as on the eleven head.