Lakenan

Under an information filed by the district attorney the defendant was accused of grand larceny. The jury returned a verdict finding the defendant guilty as charged in the information. The defendant moved for a new trial; the motion was denied, and the defendant has appealed.

The fifth point made by the appellant is the one which he stresses in his brief and in his argument. In that point he claims that the trial court erred in denying his motion for a new trial in the face of the fact that he presented two affidavits which tended to establish his defense, an alibi. The correctness or incorrectness of the ruling of the trial court depends upon a consideration of • the contents of the affidavits in connection with other facts contained in the record.

On the morning of the third day of October, 1921, the prosecuting witness, W. G. Woolfrey, arrived in San Francisco from Moose Jaw, Canada. After he had had his breakfast he stood in front of the Ferry building in San Francisco and a man approached him and passed the time of day, and finally suggested to Mr. Woolfrey that he take a trip to Golden Gate Park, and at the same time pointed out the street-car which Woolfrey should take.…