Byrnes

Defendant was convicted upon an indictment charging him with committing the crime of grand larceny.

He appeals from the judgment and an order denying his motion for a new trial.

The scheme, trick, and device by means whereof the property of one Friesz was stolen, is fully described in an opinion of this court filed in the case of People v. Rial, 23 Cal. App. 713 , [ 139 Pac. 661 ], the theory of the prosecution being that defendant was the one therein referred to as the “man behind the counter,” who, as shown, aided and abetted Rial in the commission of the crime for which the latter was convicted. While conceding the property of Friesz was obtained by Rial and his accomplices in the manner there set forth, defendant nevertheless claimed that he was not a party to or participant in the fraud, and that at the time when the transaction occurred in Venice he was in San Bernardino, some seventy-five miles distant therefrom, from which fact, if true, it must follow that he was innocent of the charge. The crime was, as alleged, committed on February 18, 1913, ■and the case was tried in June, 1914. At the trial Friesz identified defendant as being the man behind the counter who…