lish his guilt, is not erroneous.-People v. Cline, 83 Cal. 374, 377, 23 Pac. 391.

240. Instruction that possession of stolen property, in and of itself, if there be no other evidence, either circumstantial or direct, would not be sufficient to convict anybody, but if there is any other evidence tending to show guilt, taken in connection with possession of stolen property, the rule is different, is not erroneous as misleading the jury.-People v. Childs, 172 Cal. 363, 364, 59 Pac. 768.

241. Instruction that mere possession of stolen property, unexplained, by defendant, however soon after taking, is not sufficient to justify conviction, and it is merely a guilty circumstance, which, taken in connection with other testimony, is to determine question of guilt, is not erroneous to instruct jury that "It is merely a guilty circumstance," where, in other parts of instruction, jury were told that such possession is circumstance tending in some degree to show guilt, there being no material distinction between the expressions.-People v. Luchetti, 119 Cal. 501, 506, 51 Pac. 707.

242. Same As to explanation of possession. Instruction that if defendant gave honest account of how he came by property alleged to have been stolen, or under what authority he took it, it is incumbent on people, unless account given by defendant was unreasonable or improbable on its face, to show that such account was false, was properly refused, for if defendant had stated that he had stolen the property, such instruction would compel prosecution to prove statement false.-People v. Buelna, 81 Cal. 135, 137, 22 Pac. 396.

243. Instruction that if defendant was in recent possession of stolen property, law raises presumption that he is thief, and this possession, when not competently explained by defendant, is conclusive evidence of guilt, is erroneous, as such evidence is not sufficient to justify verdict of guilty, and, besides, assumes that goods stolen, and states that defendant must explain recent possession, ignoring fact that evidence of prosecution itself might afford such explanation.-People v. Gutierrez, 74 Cal. 81, 83, 15 Pac. 444.

were

244. Instruction that if the property stolen is found in possession of defendants shortly after it was stolen, it was circumstance tending to show their guilt, and that they were bound to explain possession in order to remove effect of it, and that such possession was circumstance to be considered together with other suspicious facts and circumstances which might have been shown in case, and that if part of property was found in possession of defendants, and they failed to explain to satisfaction of jury how they became possessed of it, they might be taken in consideration with all other facts and circumstances as tending to show their guilt, and that if jury believed property was stolen, and part of it was afterwards found in possession of defendants,

jury were authorized to presume that all property which they found to have been stolen was taken at same time and place as that part which was found in their possession, is not erroneous in conveying idea that possession of stolen goods, unexplained, would, of itself, be sufficient to justify conviction.-People v. Fagan, 66 Cal. 534, 535, 6 Pac. 394.

245. As to receiving stolen goods.-Instruction that if defendant did not kill the steer, and did not believe that it was property of person who killed it, and feloniously helped to remove it from place where it was killed, and took it to his place, or carried it to any other place for purpose of depriving owner of the property, he is guilty, is erroneous.-People v. Smith, 112 Cal. 333, 339, 44 Pac. 663.

of of

246. As to time of commission fense.-Exact day of commission of crime is immaterial, and hence instruction is correct, that if defendant stole, or aided in stealing, cattle named in information, though they may not believe it was done on date specified, but within a few days of that time, then the verdict should be guilty; for the law looks to the crime, and not to precise day when it was done, if done before filing of the information, and within reasonable time of day named.-People v. French, 95 Cal. 371, 372, 30 Pac. 567.

247. As to weight of evidence.-Instruction that mere possession of stolen property recently stolen is not, of itself, sufficient evidence to convict, but possession of stolen property, supported by other evidence tending to show guilt, is strong circumstance to show guilt, is erroneous, it being question for jury to determine weight of evidence. People v. Cline, 74 Cal. 575, 577, 16 Pac. 391.

As to estimation of evidence, see par. 218, this note.

248. Instruction that jurors, in determining weight to be attached to circumstance that defendant had in his possession

com

stolen property recently after mission of offense, should consider, among other things, demeanor and character of accused, is correct, it meaning demeanor of defendant at time he was found in possession of property, or at time he attempted to explain it.-People v. Farrington, 140 Cal. 656, 659, 74 Pac. 288.

249. Such instruction is not erroneous in directing that character of accused be taken into consideration, where no evidence of accused's character had been introduced, since it will be presumed that jury did not take character into consideration.-People v. Farrington, 140 Cal. 656, 660, 74 Pac. 288. 250. Must be based on the evidence.-Instruction in relation to appropriation of lost property, in language of section 485, post, was erroneous, where there was no evidence of finding of any lost property.— People v. Devine, 95 Cal. 227, 228, 30 Pac. 378.

V.

253. Variance—As to when none exists. -There is no variance between the indictment and the proof, in that the proof shows a larceny of a check rather than of money, as alleged in the indictment.-People Arnold, 20 Cal. App. 35, 127 Pac. 1060, 1061. See, also, par. 253, this note. 254. Same-Description by ownership.Where only description of property stolen is allegation of ownership, which differs in information from that in complaint upon which examined, variance is fatal.-People v. Wallace, 94 Cal. 497, 500, 29 Pac. 950. As to variance in description of animals in prosecution for grand larceny, see, post, § 487, note pars. 31-36.

As to variance in ownership of stolen property, see, post, § 956, note.

255. Same-Same-Ownership in husband or wife. Variance does not exist between information charging ownership of money stolen to be in prosecuting witness, and evidence showing that money came to his wife as her separate estate, but that she gave it to him to enable him to provide security required by defendant.-People v. Tomlinson, 102 Cal. 19, 24, 36 Pac. 506.

See, also, par. 251, this note.

As to whether ownership should be laid in husband or wife, see note, 3 A. L. R. 352. 256. Same-Immaterial when the discrepancy does not affect the validity of the indictment, or prejudice the substantial rights of the defendant in his defense.People v. Arras, 89 Cal. 223, 26 Pac. 766; People v. Evanoff, Cal. App., 187 Pac.

54.

257.

Thus, where the indictment charges larceny of a check drawn in favor of "one

P," and the evidence shows that the check was drawn to "A. G. P. or bearer," the variance is immaterial.-People v. Arras, 89 Cal. 223, 26 Pac. 766.

258. Where the indictment charged larceny from a building burglariously entered, and the ownership of the building as the "store of one S. Loupe," and the evidence showed the ownership in S. Loupe, S. Loupe and A. Hass, who were partners doing business there, but known as "Loupe's store," the court held that while there was a defective description of ownership of the store, such description being partially erroneous, the discrepancy did not in any respect affect the validity of the indictment, and that it could not in any way have misled or prejudiced the defendants in their defense; that affected none of the substantial rights of the defendants, and the variance was for that reason immaterial.-People v. Edwards, 59 Cal. 360.

an acquittal

259. Same-Material when of the defendant under the charge in the indictment would not be a bar to a further prosecution for the same offense.-People v. Arras, 89 Cal. 223, 26 Pac. 766; People v. Evanoff, Cal. App., 187 Pac. 54. 260. Verdict-Of petit larceny may be found upon prosecution for grand larceny where it is found the value of the property stolen is less than fifty dollars instead of two hundred dollars, as alleged.-People v. Wetzel, 9 Cal. App. 223, 98 Pac. 549.

261. Same-Separate verdict upon each count when the indictment of information upon which the prosecution is had contains several counts, is properly returned. -People v. Schwartz, Cal. App. - 185 Pac. 686.

262. Sentence Submitting

to

insanity jury-Discretion of court.—Where a defendant is brought up for judgment on conviction of larceny (or of any other crime), it is not error for the court, where it entertains no doubt as to the present sanity of the defendant, to refuse to submit the issue of insanity to a jury, under section 1368, post.-People v. Pico, 62 Cal. 50, 55. See State v. Lyons, 113 La. 1001, 37 So. 905; State v. Peterson, 24 Mont. 81, 86, 60 Pac. 809; State v. Nordstrom, 21 Wash. 403, 407, 58 Pac. 248.

As to insanity after commission of criminal act, see note, 36 L. R. A. 587.

P. C.-36

33. Variance-Cow or heifer. 34, 35. Same-Gelding or horse. 36, 37. Same-Horse or mare.

38. Subdivision [4]-Stealing gold dust, etc.-Construed.

1. As to grand larceny generally.-Grand larceny, as defined by the above section, consists of either of three classes of things, therein enumerated, having been stolen; and where complaint simply charges the offense in the general name of the offense without designating under which of the three classes the article taken falls, any subsequent proceeding or bond designating the subdivision under which the crime charged falls will not vitiate.-People v. Lepori, 35 Cal. App. 60, 169 Pac. 692.

2. Degrees-Statement in instruction, that grand larceny consists of certain degrees, is immaterial error.-People Holmes, 126 Cal. 462, 463, 58 Pac. 917.

V.

As to discharge of defendant on reversal of judgment of conviction, see, post, § 1260 and note.

3. Verdict of "guilty as charged"-Is sufficient, under an information charging grand larceny.-People v. Whitely, 64 Cal. 211, 27 Pac. 1104; People v. Price, 67 Cal. 350, 352, 6 Am. Cr. Rep. 399, 7 Pac. 745; People v. Manners, 70 Cal. 428, 429, 11 Pac. 643; People v. Perez, 87 Cal. 122, 123, 25 Pac. 262.

4. Subdivision one-Construed. Under this section it is not grand larceny to steal articles of jewelry, unless they are of value exceeding fifty dollars. - People v. Marshall, 59 Cal. 391, 392.

also charging that property was taken at same time and place, is sufficient.-People v. Righetti, 66 Cal. 184, 185, 4 Pac. 1063, 1185.

10. Same-Same-Value of each article. -Indictment for larceny of two hundred and fifty sheep, of total value of one thousand dollars, is not defective in failing to aver value of each sheep.-People v. Robles, 34 Cal. 591, 593.

11. Indictment charging stealing of fifteen twenty-dollar pieces and twenty-five ten-dollar pieces and ten five-dollar pieces of gold coin, of value of five hundred and fifty dollars, is sufficient, without averring value of each particular piece, as the twenty-dollar piece will be inferred to be gold coin of United States, and of value of twenty dollars.-People v. Green, 15 Cal. 512, 513.

12. Instruction

Defining grade of larceny, in language of subdivision 1, is not erroneous in failing to give remainder of such section, other subdivisions not being applicable to the case.-People v. Roberts, 1 Cal. App. 447, 449, 82 Pac. 624.

13. Instruction in prosecution for stealing articles of jewelry, that if it is proven that any of things charged to have been stolen, either singly or all together, were worth fifty dollars or over, jury would be warranted in finding defendant guilty of grand larceny, is erroneous.-People Marshall, 59 Cal. 391, 392.

v.

17. Same Same Degrees.-Grand larceny, consisting of stealing from person of another, is without degrees.-People v. Price, 67 Cal. 350, 352, 6 Am. Cr. Rep. 399, 7 Pac. 745.

18. Same-Same-Value not involved. When property is taken from person of another, offense is grand larceny, irrespective of amount taken.-People v. Nelson, 56 Cal. 77, 80; People v. Gannon, 61 Cal. 476, 478; People v. Sherman, 3 Cal. Unrep. 851, 32 Pac. 879; People v. Chuey Ying Git, 100 Cal. 437, 439, 34 Pac. 1080.

19. Evidence - Sufficiency of. That defendant was seen near prosecuting witness, that afterwards such witness' pocket was found turned wrong side out, and his purse was found near place where defendant was seen to stop, is sufficient to justify conviction of larceny from the person.-People v. Appleton, 120 Cal. 250, 251, 52 Pac. 582. 20. Felonious taking of money from under pillow of person while he was asleep does not constitute taking from the person, so as to be grand larceny.-People v. McElroy, 116 Cal. 583, 586, 48 Pac. 718.

21. Failure of court to instruct as to what constitutes taking from person is not error, when such instruction is not requested by defendant.-People v. Appleton, 120 Cal. 250, 252, 52 Pac. 582.

22. Information-Need not specify value of the property taken when charging the taking of property from person.-People v. Chuey Ying Git, 100 Cal. 437, 439, 34 Pac. 1080.

23. Information alleging that property stolen was above value of fifty dollars sufficiently alleges that offense charged was within definition of grand larceny, whether or not stealing was from person, and hence was not indefinite in failing to show that money was taken from the person.-People v. Garcia, 6 Cal. Unrep. 367, 59 Pac. 576.

24. Subdivision 3-Construed-As to generally. To make stealing of one of animals named grand larceny, animal must be live one, and not dead carcass. If one should kill one of animals for purpose of stealing it, and then take and carry away whole or part of body, it would be grand larceny: but if one should go into field and find dead animal lying there, and should take and carry away the body, it would not be grand larceny, unless part carried away was of value of fifty dollars or more.People v. Smith, 112 Cal. 333, 339, 44 Pac. 663.

25. It is competent for legislature to designate larceny of specific property grand larceny without regard to value of the property.-People v. Townsley, 39 Cal. 405; People v. Salorse, 62 Cal. 139, 142.

26. Same-Same-“Cattle" being collective term for domestic quadrupeds, especially applied to bulls, COWS, and oxen, bail-bond using word "cattle" instead of

specific terms in statute is not therefore void. People v. Barnes, 65 Cal. 16, 17, 2 Pac. 493.

27.

Same Same -"Heifer" synonymous with "cow.”—In such a prosecution, the defendant is properly convicted of grand larceny instead of larceny, where the property, which was the subject of the mortgage, consists of three heifers and two cows, the word "heifer" being synonymous with "cow" within the meaning of section 487 of the Penal Code, which declares the stealing of a "cow" to be grand larceny.People v. Phillips, 30 Cal. App. 31, 157 Pac. 1003.

28. Same- Same- "Horse," as used in section, is used in its generic sense, and includes all animals of horse species, whether male or female, and use of the word "mare" does not modify or change this rule.-People v. Pico, 62 Cal. 50, 52; People v. Melandrez, 4 Cal. App. 398, 88 Pac. 372. See State v. Gooch, 60 Ark. 218, 220, 29 S. W. 640; State v. Collett, 9 Idaho 615, 75 Pac. 273; State v. Matejousky, 22 S. D. 37, 115 N. W. 99.

See ante, § 484, note pars. 199, 200.

29. Proof of theft of mare does not constitute variance from information charging theft of horse.-People v. Melandrez, 4 Cal. App. 396, 88 Pac. 372.

30. Indictment-Not stating value, in charging theft of horse, is sufficient to charge grand larceny, the statute having made stealing of horse grand larceny.People v. Townsley, 39 Cal. 405. See People v. Shuey Ying Git, 100 Cal. 437, 439, 34 Pac. 1080.

As to description of animal in information, see, ante, § 484, note pars. 70-74.

31. Instruction, in prosecution for theft of calves, that grand larceny is larceny committed in either of following cases: When property taken is of value exceeding fifty dollars; when property is taken from person of another; when property taken is bicycle, horse, calf, etc., is not erroneous in including portions of section which were inapplicable, confusing, and misleading.People v. Ruiz, 144 Cal. 251, 252, 77 Pac. . 907.

32. Instruction that "stealing of cows, etc., is grand larceny, regardless of value of property; and as there was no evidence of anything other than cows, etc., having been taken, you would not be at liberty to find defendant guilty of petty larceny, but your verdict must be, guilty of grand larceny, if you believe from the evidence beyond a reasonable doubt, that defendant did steal cow," etc., is not defective as instructing jury to find defendant guilty of grand larceny.-People v. Prather, 120 Cal. 660, 667, 53 Pac. 259.

33. Variance - Cow or heifer.-Indictment charging theft of cow is supported by evidence that animal stolen was heifer