Opinion
Commissioners’ decision. Department 2. Appeal from superior court, Stanislaus county; William O. Minor, Judge.
Frost Fagan was convicted of the larceny of cattle, and appeals. Reversed.
COUNSEL
James H. Budd, L. J. Maddux, and Robt. Farrell, for appellant.
Atty. Gen. Hart and L. W. Fulkerth, Dist. Atty., (T. A. Coldwell, of counsel,) for the People.
OPINION
TEMPLE, C.
The defendant was indicted jointly with his father, whose appeal was recently disposed of here, ( [4 Cal.Unrep. 88] People v. Fagan, 33 P. 60,) and William Ducker. They had separate trials, and the cases, as presented in the record, differ widely. By this record it appears that one F. Weyer had about 200 head of cattle on the Booth ranch, in the county of Stanislaus, 22 miles west of Modesto. On the 2d day of October, 1891, 21 head were missing. Nothing was known as to the mode or cause of the disappearance, but on the 8th or 9th of the same month seven animals were found by William Grummett on the Howard ranch. Grummett had charge of Howard’s stock, and had some belonging to himself. At the suggestion of Howard, he put the strays in with his own. On the 13th four more animals appeared, and were taken by Grummett. Howard, on the 16th of the month, having heard of Weyer’s loss, notified Purvis, sheriff of the county, of the presence of the cattle. On the next day, Purvis and McGinnis, a deputy constable who was looking for the cattle, and had offered a reward for their recovery and the apprehension of the thief, supposing them to have been stolen, went to Howard’s ranch, and examined them. The animals had been freshly marked, and the brands altered. The marks were a crop off one ear, and an underslope of the other. Weyer’s brand consisted of a mark resembling a capital L, when turned one way, and, inverted, resembled the figure 7. The cattle were thus branded. It had been changed by connecting the horizontal line with the perpendicular mark at each end, making it a square. Thus altered, both marks and brand bore a close resemblance to the marks and brand used by the defendant. The sheriff told Grummett to keep the cattle until some one called for them, and then immediately notify him. These cattle were subsequently identified as a portion of the 21 head which had been lost by Weyer. Defendant lived with his parents at Modesto. His father had recently taken up some land in the coast range, about nine miles from Howard’s, intending, as he said, to homestead it. His father had a small cabin there, and had gone there about the 1st of October. Defendant’s witnesses testified to facts which, if true, proved that defendant was at home on the night of the 2d of October, and also on the 3d and 4th of that month. Defendant had cattle of his own, and, according to his testimony, on the 14th of October drove some 15 head into the coast [4 Cal.Unrep. 89] range near his father’s cabin, and remained there at his father’s place until his arrest, on the 20th. On the 18th, Grummett visited the Fagan cabin, and told defendant about the 11 head which were at Howard’s, describing their marks and brands, when, according to Grummett’s testimony, defendant said they were some cattle he had recently purchased and re-marked, and said he would take them away. Defendant, on the stand, denied having said that he had recently bought or marked any cattle, and said he knew nothing of the cattle lost by Weyer. He had neither taken nor marked any of them. He said, however, he had lost some of his cattle, and was looking for them. He testified that 10 head of his were never found. The 11 head were taken from Howard’s place on the 19th of October, about noon, while Grummett was at dinner. During the afternoon, Grummett missed them, and found that a gate which had been locked had been lifted from its hinges; that there were cattle tracks through the gate, and also those of a horse. He telegraphed to Purvis, who came over that evening, bringing McGinnis with him. They, with Grummett, followed the tracks to a canyon leading into the coast range, called ‘Ingram Canyon.’ Three ravines, not far apart, lead into the mountains. Washington canyon is the more northerly, then Curran canyon, and then Ingram. High ridges divide them from each other. They terminate near together at a mountain called ‘Oso,’ near which Grummett and his brother had a place. About 4 o’clock in the morning of the 20th they reached the Fagan cabin, where they found the 11 head in a corral within a few feet of the cabin. In the cabin they found the defendant and his father, in bed, while William and Ed. Ducker were lying by the cabin on the outside. When asked by the sheriff if the cattle were his, defendant replied that they were not; that they were strays, and he did not know how they got into the corral. Charles Fagan said that he and Will Ducker put them into the corral, and that Frost knew nothing of it. At the trial, Ducker testified that defendant was cooking supper when the cattle appeared there, not driven by any one, and muddied their spring, whereupon Charles Fagan and he put them into the corral. The defendant also said that he had about 30 head of cattle in the range, and some of the posse made search, and found 2 head near Mt. Oso, which were marked and branded in [4 Cal.Unrep. 90] the same mode as the 11 head. Afterwards, November 21st, 3 more were found near Mt. Oso, 3 1/2 miles from the Grummett cabin. They were marked and branded similarly to the 11 head. They were taken to Modesto, and placed in Mr. Young’s corral, and on the trial were identified as Weyer’s cattle, and as having been missed on the 2d of October; but they were not part of the 11 head, with the larceny of which, it was assumed at the trial, defendant was charged.
The court required the prosecution to say whether they prosecuted the defendant for a larceny committed by the taking from the Howard place on the 19th, or from the Booth ranch on the 2d. The district attorney said he claimed that the taking was from the Booth ranch on the 2d. If, therefore, it can be said that the defendant was found in possession of the cattle at all, it was not until 18 days after the taking; and it was only from the circumstances recited that it could be inferred that even then defendant had any possession or control of them, by himself, or jointly with his codefendants. And the evidence was conflicting as to the existence of every one of these circumstances, except the fact that the cattle were found in his father’s corral while he and three others were at the cabin. It is impossible to make out from the statement in what respect the defense claimed that the marks and brands upon the cattle alleged to have been stolen differed from the defendant’s marks and brands. But a great deal of evidence was put in upon the subject upon both sides, much of which consisted in illustrations upon the blackboard, or the examination of sensible objects, the force of which we cannot appreciate. To enable the jury to compare these marks and brands, there was exhibited to them, against the objections of the defense, a hide alleged to have been taken from an animal claimed by the defendant. It was not the hide of an animal alleged to have been stolen, but was exhibited merely to prove what the defendant’s marks and brands were. I think the evidence insufficient to show that the hide was from a steer belonging to the defendant, or that it had not been tampered with, but I pass to what I deem a still plainer error.
After examining the earmarks upon the hide, the court, with the jury, clerk, sheriff, and counsel went to Young’s [4 Cal.Unrep. 91] corral to examine the three head which had been found, November 21st, near the Grummett place, in the coast range, of course, for the purpose, in part, of comparing the marks with those upon the hide. These three animals the defendant was not charged in the information with stealing, nor was it shown, by direct evidence, at least, that he had ever seen them, or that he knew anything about them. This action of the court was against the objection of the defendant. This course is not authorized by section 1119 of the Penal Code. The cattle and the marks were not offered in evidence, so as to afford the defense an opportunity to object, nor had they the opportunity to call the attention of the jury to variances between the marks and those of the defendant. Upon this point, see People v. Fitzpatrick, 80 Cal. 539, 22 P. 215.
When the defendant was on the stand, the following occurred:
‘Question. What is there about this hide? Answer. This hide? Q. Yes, sir. A. Well, I don’t know whether it is the same bullock or not.
Sam Miller sold a bullock that belonged to me. Mr. Fulkerth: We shall object to that, that it is immaterial what there is about that hide. They can dispute the conversation, if they want to.
The Court: That is your hide. Mr. Ferral: What is there to this hide that has been offered in evidence?
So he may have the right to explain any connection he has with it.
The Court: I think that it is too general a question.
I will sustain the objection. (The defense reserved an exception.)’ I take it that the remark of the judge, ‘That is your hide,’ was merely intended to tell the witness that it was the hide offered in evidence. The question, with the explanation, which must be taken as a part of it, was not too general. It could hardly be made more specific without being objectionable. The objection made and sustained was that it was immaterial, as the defendant could only deny the conversation in which the defendant was reported to have said that the marks on the animal killed were his. The defense, having taken an exception, pressed the matter no further. What explanation could have been given, we do not know; but many possible ones may be imagined, which would have destroyed the entire value of the evidence, if believed by the jury. That the evidence was most material is evident. The identity of the marks and brands recently made on the cattle with the marks and brand [4 Cal.Unrep. 92] of defendant was the most important fact testified to for the people, and the exhibition of the hide and the marks and brands on the cattle in Young’s corral was the most forceful evidence of the fact. For this reason the judgment and order must be reversed.
The exceptions to the instructions are mainly the same as those made in the recent case of People v. Fagan. In that case the court deemed it unnecessary to consider and determine these questions. It is not more necessary to do so in this case.
We concur: VANCLIEF, C.; SEARLS, C.
PER CURIAM.
For the reasons given in the foregoing opinion the judgment and order appealed from are reversed.