Plum

-The information charges the defendants with the crime of “grand theft, committed as follows: The said Fred Plum and R. S. Christman on or about the twentyninth day of August, A. D. nineteen hundred and twentyseven, at the county of Yuba, in the state of California, then and there being, did wilfully and unlawfully take, steal and carry away the property of one J. B. Dalby, consisting of five head of cattle, of the value of two hundred twenty dollars.” Neither defendant demurred to the information and each of them entered a plea of not guilty. They were both convicted and sentenced to imprisonment in the state prison. This appeal is from the judgment and the order denying a new trial.

At the time of the alleged crime Christman, who is a veterinary surgeon, was meat inspector and health officer of the city of Marysville. Plum owned a meat market in Marysville and a slaughter-house near Ostrom station, about midway between Marysville and the town of Sheridan. J. B. Dalby was a farmer, residing near Sheridan.

August 19, 1927, Dalby called Christman to the farm to treat a sick cow. Christman “looked at the cow” and “said it was a bad case of tuberculosis and there could be nothing…

In their petition for a rehearing the appellants, referring to the last sentence of section 952 of the Penal Code (Stats. 1927, p. 1043), quoted in the original opinion, say: "The enactment, providing that the allegation of `unlawfully took' shall be sufficient to charge all the acts constituting theft, . . . not only fails to allege the elements of the crime of theft, but alleges an act which might and ordinarily does not constitute a crime at all." Section 952, however, must be read in connection with section 951, both enacted at the same session of the legislature. Section 951 provides:

The information in this case, the charging part of which is set out in the original opinion, is in substantial compliance with the prescribed form, and it is clear that “grand theft” always constitutes a crime. In an early case it was said: “Our criminal code was designed to work the same change in pleading and practice in criminal actions which is wrought by the Civil Code in civil actions. Both are fruits of the same progressive spirit which, in modern times, has endeavored at least to do away with the mere forms and technicalities of the common law which were productive of no good, and…