California Charles Howard Fairall.

Criminal law and procedure of California including the penal code of California online

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indicted and convicted alone. ^ And the fact that the woman
was under age of consent and the defendant might also have
been indicted for rape is immaterial. Both crimes may
be committed by the same act.^

ATTEMPT TO COMMIT.

The intent of the father to commit incest with his
daughter and his concurrent overt acts in the use of means
adopted to the immediate perpetration and consummation
of the offense, are sufficient to show attempt without actual
penetration.* But an attempt to contract an incestuous
marriage involves more than a mere preparation for such
marriage.'^

EVIDENCE.

The testimony of the female alone is sufficient to sus-
tain a conviction where slightly corroborated, notwithstand-

1 People V. Gleason, 99 Cal. 359.

2 People V. Patterson, 102 Cal. 239.

3 People V. Kaiser, 119 Cal. 456.
* People V. Gleason, 99 Cal. 359.
5 People V. Murray, 14 Cal. 159.



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IN0K8T, 211

ing the defendant positively denies all the charges made
against him.' To prove the illicit relations previous acts
of sexual intercourse may be shown.''

PENALTY.

Imprisonment in state prison not exceeding ten years.

FORM — INCEST.

Wilfully, unlawfully, knowingly, incestuously and felon-
iously, upon the person of C D, the daughter ' [or other
person within prohibited degree], of said A B, did commit
fornication, and have sexual intercourse with and carnally
know the said C D.*

INFANT, see KIDNAPPING AND ABDUCTION.

INNKEEPER, see DEFRAUDING INNKEEPER.

INSURED PROPERTY, BURNING OF, see ARSON.

JUSTIFIABLE HOMICIDE, see HOMICIDE.

« People V. Kaiser, 119 CaL 456.
7 People V. Patterson, 102 Cal. 239.

« People V. Kaiser, 119 Ca!. 456; People v. Patterson, 102
Cal. 239.



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CHAPTER XXXIL



KIONAPPING.

(Penal Code, sec. 207.)



DEFINED.



Is the forcible stealing^, taking, or arresting any
person in this state, and carrying him into another country,
state or county, or the hiring, persuading, enticing, decoying
or seducing by false pretenses, misrepresentations, or the
like, any person to go out of the state, or to be taken or
removed therefrom, with intent to sell such person into
slavery, or involuntary servitude, or otherwise employ him
for his own use, or to the use of another, without the free
will and consent of the persuaded person.^ The arrest by
an officer upon a warrant regularly issued is not kidnap-
ping.^ But where an officer, although acting under a war-
rant in all respects regular, instead of taking the person
arrested before a magistrate, takes her into a house of ill
fame, he is guilty of the offense of kidnapping.* It is nec-
essary that the abduction be accompanied with a removal
from the county or state, or with intent to remove beyond
the limits of the state.* But the taking out of the state is
not accomplished by taking to an island which is a part of
the state.*^

CHILD STEALING.

But a person who maliciously, forcibly or fraudulentiy
takes or entices a child under the age of twelve years, with
intent to detain and conceal such child from the parents or

1 Penal Code 207.

2 Et parte Stemes, 82 Cal. 245.
» People v. Pick, 89 Cal. 144.

4 People V. Chu Quong, 15 Cal. 332.
s Ex parte Keil, 85 Cal. 309.



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KUWAPPIKG. . 218

guardian, or other person haying lawful charge of such
child, is guilty, of child stealing.® Under this section it is
unnecessary that the abduction should be accompanied with
a removal or a design to remove, as the intent to detain
and conceal from parents or guardian is the gist of the
offenseJ

PENALTY.

Kidnapping, imprisonment in the state prison from one to
ten years.® If to commit extortion or robbery, imprison-
ment in state prison from ten years to life.®"^ Child steal-
ing, imprisonment in state prison not exceeding twenty
years.*

INDICTMENT.

The acts constituting the offense are sufficiently alleged
if the indictment follows the language of the. statute. The
allegation as to the purpose of the kidnapping is surplusage
and need not be proved.^^ Under an indictment for child
stealing, it is immaterial that it also charges facts which
show an attempt to take and entice away a child.^*

FOR M — K IDN APPI NG.

Unlawfully, forcibly and feloniously and without any
lawful warrant or authority whatever, and without first
having established a claim to seize or take him according
to the laws of the United States, or the laws of the
state of California, did seize, steal, take and kidnap
one C D, with the design and intent then and there
to take the said C D out of this state, without the consent
and against the will of said C D.

ANOTHER FORM.

Wilfully, unlawfully, feloniously and forcibly did take
one C D, then and there being in the said county of

« Penal Code 278.

7 People V. Chu Quong, 15 Cal. 332.

8 Penal Code 208.
8a Penal Code 209.
• Penal Code 278.

10 People V. Fick, 89 Cal. 144.
" People V. Milne, 60 Cal. 71.



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214 GBmiNAL. UMT atm 9&OCBDUBX.



and carry aaicE C £> into another covnliy im said state, tb wit^
the couifty' of ■ , m said stalds, withoitt due content and
agWMt the win ef the said C D.^'

FORM^-CHILD STEALIKa

Unlawfully, maliciously, feloniously and forcibly did take
away one C D, then and Aere being a child under the age

of twelve years, to wit, years, with intent then and

there and thereby to detain and conceal said child from
J D, the father of said child [or from other person having
the lawful charge of such child].

12 People v. Pick, 89 Cal. 144; People v. All Own, 39 CaL
604.



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CHAPTER XXXIII.



LARCBNY.



DEFINED.



Larceny is the felonious stealing, taking, carrying, leading
or driving away the personal property of another.

PROPERTY SUBJECT OF LARCENY.

As indicated by the definition only personal property is
the subject of larceny and consequently it has been held that
in order to be susceptible of larceny the property must be
severed from the realty and be capable of asportation. Thus
in an indictment for stealing a quantity of gold-bearing
quartz it was held that since it did not appear that the quartz
rock had been severed from the realty there could be no
larceny in stealing things adhering to the soil. The court,
however, suggested the need of remedial legislation.* But
since those decisions the legislature has, by statute, made it
larceny to steal ore though not severed from the earth prior
to the taking.^ And the converting of any manner of real
estate into personal property, by severing the same from the
realty of another, with felonious intent to steal and stealing
the same is larceny.^

OWNERSHIP.

Possession of property is sufficient ownership as against a
thief.* And an agister has a sufficient ownership, for the

1 Fdople V. WUliams, 35 Cal. 671; People v. Meyer, 75 Cal,
385.

2 Statutes 1871-72, page 435; People v. Opie, 123 Cal. 294.
8 Statutes 1871-72, page 282.

* People v. Oldham, 111 Cal. 648; People v. Davis, 97 Cal.
194; People v. Nelson, 56 Cal. 77; People v. Tomlinson,
102 Cal. 24.



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216 -OBIMIKAL LAW AND PROCEDURE.

purposes of larceny, of the property in his possession, even
though he has an interest in the increase of the stock which
might make him a joint owner with another." A party
cannot be convicted of larceny of his own property.* Yet, if
it be taken from a bailee, or other person in lawful possession
with intent to charge such person therewith, it is larceny.^

ASPORTATION.

Larceny implies a change of possession from the owner
to the thief, therefore, it is necessary to show asportation,
which an attempt to carry away does not show.® To con-
stitute larceny there must be a feloniously and fraudulent
taking of property with intent to deprive the owner of its
use.* The act of taking must co-exist with the felonious
intent to deprive the owner of his property.^® But the
asportation, the ownership of the property and the intent
with which it is carried away are questions of fact for the
jury.^^ Where a coat was removed from a dummy in front
of a store but still remained attached by a chain, there was
no taking." And the killing of a domestic animal without
removing the carcass is not larceny." But the taking or
enticing the animal away, with intent to appropriate it, is
larceny.^*.

TIME OF TAKING.

Time is not an essence of the offense of larceny ; it need
not be shown that the crime was committed on the precise
day alleged, if before the filing of the information and within
a reasonable time of the day named."

6 People V. Buelna, 81 Cal. 135.

6 People V. MacKinley, 9 Cal. 250.

T People V. Stone, 16 Cal. 369; People v. Thompson, 84

Cal. 671; Jones v. Jones, 71 Cal. 89.
8 People V. Meyer, 75 Cal. 383; People v. Murphy, 47 Cat

103.
» People V. Juarez, 28 Cal. 380; People v. Brown, 105 Cal.

66.

10 People V. Salorse, 62 Cal. 139; People v. Morino, 85 Cal.
515.

11 People V. Carabin, 14 Cal. 439.

12 People V. Meyer, 75 Cal. 383.
18 People V. Murphy. 47 Cal. 103.
14 People V. Smith, 15 Cal. 408.

« People V. French, 95 Cal. 371; Penal Code 995.



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LABqSNY. 217



INTENT.



Obtaining money with fraudulent intent to convert and
converting it, is larceny.^* The felonious intent is an element
of the crime and must be shown. ^' It is a question of fact
for the jury.^* Taking property from a friend for safe
keeping ;^* or without felonious intent ;^^ or with the consent
of the party, does not amount to larceny.** But mere passive
submission, however, does not show consent.^*-^ Consent
to the taking is a matter of defense and must be shown by
the accused.*^ A claim to the property made in good faith
although not legal will overcome the intent to steal." But
a fraudulent procurement of property with the felonious
intent to convert it is larceny.**^ So that money obtained by
means of a bunco game shows a felonious intent and is
larceny.-'*^ This intent must exist at the time of the taking.*^
But where the taking was wrongful the intent to steal may
be formed afterwards.-^ Where there was a felonious
intent in getting possession of the property, and afterwards
an appropriation it is larceny. ^° An unlawful appropriation
by the finder of the property is larceny.^^ The felonious
intent in all cases must be wholly and permanently to deprive
the owner of his property, so that a taking temporarily or
for purposes of revenge is not larceny.'** And it must

i« People V. Raschke, 73 Cal. 385; People v. Smallman. 65

Cal. 185; People v. Shaughnessy, 110 Cal. 602.
17 People V. Devine, 95 Cal. 227.
i« People V. Swalm, 80 Cal. 46.
I'J People V. Stewart, 80 Cal. 129.
••'» People V. Hansen, 84 Cal. 294.
21 People V. Hanselman. 76 Cal. 460.
2-* People V. Hanselman, 76 Cal. 460.
2' People V. Davis, 97 Cal. 194.
'-J^ People V. Eastman. 77 Cal. 171.
2& People V. Raschke, 83 Cal. 501.

26 People V. Shaughnessy, 110 Cal. 602.

27 People V. Morino, 85 Cal. 515; People v. Jersey, 18 Cal.
337; People v. Salorse, 62 Cal. 139.

2« People V. Pico, 62 Cal. 50.

29 People V. Montarial, 120 Cal. 691.

»o People V. Buelna, 81 Cal. 135; People v. Deviae, 95 Cal.

231.
31 People V. Brown, 105 Cal. 66.



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2ilS CBIMINAL LAir ial0 ra0CBDUR^#

appear that the defendant awd no other committed the
offense.** Motive for the crime is always apparent •*

LARCENY BY BAILEE.

Where a bailee secures possession of property with intent
' to steal it, anti doe^ steal it, he is guilty of larceny.**, tike-
wise where a broker takes a bank check with intent to steal
it ;** or where a warehouse foreman sells property without
authority ; and the person who buys the same knowingly is^
guilty of receiving stolen property.**

LARCENY DISTINGUISHED FROM EMBEZZLEMENT.

Where the bailee of property obtains possession of it from
the owner with the intention of stealing it, and carries out
that intent, he is guilty of larceny ; but where the intent to
steal did not exist at the time of taking possession of the prop-
erty by the bailee, but was conceived afterwards, it is
embezzlement.*^ Where the property was openly taken from
a sleeping and intoxicated friend with the avowed intent
of caring for it, if subsequent conduct showed an intent ta
convert instead of caring for it, it is larceny.**

LARCENY AND FALSE PRETENSES DISTINGUISHED.

It is essential to the crime of larceny that the title to the
stolen property should not have been parted with. If the
title has been obtained by fraud or deceit, the crime is that
of obtaining property under false pretenses, and not lar-
ceny ; but if the transfer be of possession merely, or of some
special property by way of pledge or bailment, which has
been secured by fraud, with present felonious intent to-
ss People V. Carrillo, 70 Cal. 643; People v. Kaiser, 119 Cal.

459.
88 People V. Kelly, IZZ Cal. 430.

84 People V. Smith, 23 Cal. 280; People v. Raschke, 73 CaL
383.

85 People V. Abbott, 53 Cal. 284.

86 People V. Perini, 94 Cal. 573.

87 People V. Smith, 23 Cal. 280; People v. Johnson, 71 Cal.
390; People v. Abbott, 53 Cal. 284; People v. Saloree,
62 Cal. 139; People v. Morino, 85 Cal. 517 J People v. De-
Graaf, 127 Cal. 676; People v. Montarisl, 12 Cal. 691;
People V. Raschke, 73 Cal. 383.

88 People V. Hansen, 84 Cal. 291.



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I. HERRiNGTON,

comtvt the property so acquired^ the offense fe la-cwiy.**
ObtsMiiiig money by fraud when the title remains in the
owner h larceny/^ In larceny the ovmer does not intend to
part with title and possession, while in false pretenses he
does." Atwh-where the facts show larceny and also false
personation, the defendant may be prosecuted for larceny,
althou^i he might also be informed against f<»' false pre-
tenses.**.

GRAND LARCENY.

It is in the power of the legislature to declare the larceny
of specific property to be grand larceny without reference
to its value, and it has so declared.** It is grand larceny
where the property taken is a horse, mare, gelding, cow,
steer, bull, calf, mule, jack, jenny or a bicycle.** But such
animal must be alive. The stealing of a carcass of an
animal is not grand larceny irrespective of its value.**^ The
word horse includes mare;*^ also, gelding.*^ And cow
includes heifer." In all other cases to constitute grand
larceny, the property stolen must exceed fifty dollars;** or
have been taken from the person of another.'* But in order
to constitute a taking from the person, the property must
be attached to the person, or carried or held in actual phy-
sical possession. The taking from the pocket of a garment
under the head of a sleeper is not a taking from his person.**
The value of the goods is a question for the jury.*^^ And

8» People V. Campbell, 127 Cal. 278; People v. Raschke,
73 CaL 378; People v. Johnson, 91 Cal. 265; People v.
Tomlinson, 102 Cal. 19; People v. Shaughnessy, 110 Cal.
602; People v. Montarial, 120 Cal. 695; People v. Belden,
37 Cal. 51; People v. De Coursey, 61 Cal. 136.

40 People V. Rae, 66 Cal. 426.

" People V. Martin, 102 Cal. 558.

42 People V. Campbell, 127 Cal. 278; People v. Frigerio,
107 Cal. 152.

48 People V. Townsley, 39 Cal. 405; People v. Cheuy Ying
Git, 100 Cal. 439.

** Penal Code 487; People v. Barnes, 65 Cal. 16.

48 People V. Smith, 112 Cal. 383.

48 People V. Pico, 62 Cal. 50.

47 People V. Monteith, 73 Cal. 7.

48 People V. Soto, 49 Cal. 67.

-•» People V. Marshall, 59 Cal. 391.

80 Penal Code 487.

81 People V. McBlroy, 116 Cal. 583; People v. Appleton, 120
Cal. 252.

82 People V. Staples, 91 Cal. 23.



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2ii0 CBIMINAL LAW AND PROCEDURE.

4 ^

where the evidence shows that it might ]be either ^and or
petit larceny the court must i^)§trw:t tiie jpry. on both."
There are no degrees in larceny and a verdict of guilty
where the indictment cjiarges grand larceny is sufficient to
convict of that crime."

EVIDENCE. .

Though evidence of. wealth or, poverty of the accused is
not permissible, evidence is admissible to show that previous
to the date of the crime the defendant was without money,
and that immediately after that date he had a large sum."
Experts may testify to cattle brands,^^ and it may be shown
that the defendant had destroyed the marks and brands on
the carcass.'*^ Ear marks of a hog are some evidence of
ownership although not recorded.*® Strict proof of the
identity of coin is not required.*^® The identity of the stolen
property is a question for the jury.®** Ownership by a cor-
poration may be shown by proof of a corporation de facto}^
Where the evidence tends to show that a purse, dropped
by a co-defendant, was passed to him by the defendant, it
is admissible as a part of the res gestac.^^ And evidence of
adulterous intercourse between the defendant and the wife
of the owner of the property -is admissible to show that the
defendant knew the property given him by her was given
against the will of the husband.®^

RECENT POSSESSION OF STOLEN PROPERTY.

Recent possession of stolen property alone is not sufficient
to convict,*^* but where other inculpatory circumstances are
shown in the absence of explanation it is sufficient to

63 People V. Comyns, 114 CaL 107.

6* People V. Price, 67 Cal. 350; People v. Manners, 70 CaL

428; People v. Perez, 87 Cal. 123.
63 People V. Kelly, 132 Cal. 430.
6« People V. Fitzpatrick, 80 Cal. 538.

57 People V. Murphy. 47 Cal. 103.

58 People v.Bolanger, 71 Cal. 17.
50 People V. Linn, 23 Cal. 150.

60 People V. Jim Ti, 32 Cal. 60.
«i People V. Barric, 49 Cal. 342.

02 People V. Piggott, 126 Cal. 609.

03 People V. Swalm, 80 Cal. 46.

^* People V. Vilarde, 59 Cal. 463; People v. Swlnford, 67
Cal. 86.



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LARCBNY.^ 221.

authorize the submission of the case to the jury.^'^ It does
not constitute a legal conclusion of guilt.*' Neither is it^
unexplained, prima facie evidence of guilt,®^ but is merely a
guilty circumstance to be taken into consideration with other
facts,'® unless satisfactorily explained,'® and from which
the defendant's complicity in the larceny may be inferred/'
And the jury may presume from the fact, if they find the
defendant stole the property that all the property stolen at
the same time and place was stolen by the defendant, unKss
some facts are shown to the contrary/^ Its value as
evidence is greatly enhanced if the stolen property be rare
coin,^^ but whether it be strong evidence or only slight is a
question for the jury.^^ But it must be shown that the
possession was personal and exclusive and involved a distinct
and conscious assertion of possession;^* and was with the
consent and will of the defendant/". The defendant may
show by other evidence that his possession was innocent,^'
or that he purchased it from another.^^ Possession of other
stolen property may be shown to overthrow evidence of
rightful possession.''® The identity of the money stolen is

65 People V. Vidal, 121 Cal. 221.

60 People V. Levison, 16 qal. 99; People v. Chambers, 18

Cal. 384; People v. Kraker, 72 Cal. 461; People v.

Noreaga, 48 Cal 123; People v. Cline, 74 Cal. 577; People

V. Antonio, 27 Cal. 407; People v. Hurley, 60 Cal. 77;

People V. Kelly, 28 Cal. 427; People v. Clough, 59 Cal.

438.
«7 People V. Oassawayj tZ Cal. 51.
«8 People V. Rodundo, 44 Cal. 538; People v. Etting, 99 CaL

578; People v. Abbott. 101 Cal. 647; People v. Gill, 45 Cal.

285; People v. Mitchell, 55 Cal. 236; People v. Clough, 59

Cal. 438; People v. Velarde, 59 Cal. 463; People v. Fagan,.

66 Cal. 534; People v. Hannon, 85 Cal. 374.
«o People V. Luchetti, 119 Cal. 501.
70 People V. Kelly, 28 Cal. 427; People v. Antonio, 27 Cal.

404.
Ti People T. Fagan, 66 Cal. 534.
72 People V. Getty, 49 Cal. 581.
7a People t. Titherington 59 Cal. 598; People v. Cline, 74

Cal. 577.
74 People V. Hurley, 60 Cal. 74. ,
7» People V. Warren, 130 Cal. 683.
7« People V. Buelna, 81 Cal. 136.

77 People V. Cline, 74 Cal. 576.

78 People V. Lopez, 59 Cal. 362; People v. Cunningham,.
66 Cal. 669.



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222 CRIMINAL LAW AMP PBOCBDUBB.

not required, but it is sufficient to show that the money found
on the defendant was the same amount, the same coin and
denomination and the defendant was in a position to have
taken it.^^ The finding of the property at the place indicated
in the confession of the defendant, renders the confession
admissible, whether it was given under duress or not.*** An
innocent possession may be rebutted by evidence that the
defendant asked of a third person, before the larceny was
committed, if he did not want to buy property of the nature
of that stolen.*^

VARIANCE.

A variance as to the ownership is immaterial where the
property is otherwise described,*^ or where the description
identifies the owner.** And under a charge of larceny for
obtaining money by fraud, evidence that the money paid
to the defendant by the prosecuting witness came from the
separate estate of his wife, and was given by her to the
prosecuting witness to provide security required by the
defendant, does not show a variance from the allegation that
the property belonged to the husband.®* And an allegation
of ownership in Samuel and proof in Sam is not a material
variance.**^ But a charge of larceny of five stock certificates
of the same number is not supported by proof of larceny of
one of that number.*® A material variance between the
proof and the information arises only when the acquittal of
the defendant under the information will be no bar to a
further prosecution for the same offense; but where the
discrepancy does not affect the validity of the information,
or prejudice or affect the substantial rights of the defendant
in his defense, the variance is immaterial."

7» People V. Wong Cheng Suey, 110 Cal. 117.

80 People V. Murphy, 47 Cal. 103.

81 People v. Luchetti, 119 Cal. 501.

S2 People V. V^atson, 72 Cal. 402; People v. Anderson. ««
Cal. 207; People v. Ribolsi, 89 Cal. 492.

83 People V. Smith, 112 Cal. 333; People v. Armstrong, 114
Cal. 573; People v. Leong Quong, 60 Cal. 107.

84 People V. Tomlinson, 102 Cal. 19.

85 People V. Armstrong, 114 Cal. 570; see also People v.
Arras, 89 Cal. 223.

8c People V. Coon, 45 Cal. 672; People v. Strassman, 112

Cal. 683.
87 People V. Arras, 89 Cal. 223.



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I^AROBNY. 223

RECEIVING STOLEN GOODS.

The crime of larceny is distinct from that of receiving
stolen goods and proof of the latter crime is insufficient
to convict one accused of the former.^ Nor is a receiver of
stolen goods an accessory after the fact of the larceny.^ A
verdict of larceny cannot be had upon proof of receiving
stolen goods.* And it is not larceny if the defendant had
no knowledge of its commission prior to the receiving of
the goods.*

LARCENY NOT INCLUDEgf IN BURGLARY.

Larceny is not an element of burgl^i^rKiind not included
in it,° even when committed at the same i5^^^ and a trial
for burglary and a conviction of larceny will rlotirhe^ipheld ;
both these crimes cannot be charged in the same(5Wict-
ment,^ as they are two separate and distinct offenses.® %

VENUE.

The venue may be laid in the county into which the stolen
property was taken.^ The jurisdiction is in either county.^^
But the bringing of the goods into the county does not confer
jurisdiction -where the larceny was committed in a foreign
country.^^ The venue is in any county into which the
stolen goods are taken.^^

INDICTMENT — DESCRIPTION OF PROPERTY.

The indictment need not give the description of the prop-
erty in detail,^^ but it must correctly describe the property

1 People V. Ward, 105 Cal. 653.

2 People V. Stakem, 40 Cal. 599; People v. Maxwell, 24 Cal.
14.

3 People V. Eagan, 98 Cal. 230; People v. Ward, 105 Cal.
652.

* People V. Maxwell, 24 Cal. 14; People v. George Tilley

California Decisions Dec. 12. 1901.
5 People V. Curtis, 76 Cal. 57.
People V. Garnett, 29 Cal. 622.

7 People V. Garnett, 29 Cal. 622.

8 People V. Curtis, 76, Cal. 58.

9 People V. Mellon, 40 Cal. 648; People v. Scott, 74 Cal. 96;
People V. Staples, 91 Cal. 27.

10 People V. Robles, 29 Cal. 421.

11 People V. Black, 122 Cal. 73.

12 People V. Garcia, 25 Cal. 531.
IS People V. Stanford, 64 Cal. 27.



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224 CRIMINAL LAW AMD PROCEDURE.

Stolen for the purpose of identification,^* and unnecessary
matters alleged in the indictment may be in the alternative
as, for instance, the color of the animal stolen." In an
indictment for larceny of coin it is not necessary to allege



Online LibraryCalifornia Charles Howard FairallCriminal law and procedure of California including the penal code of California → online text (page 18 of 77)