Bojorquez

I concur in the judgment and in all that is said in the opinion of the presiding justice, but I desire to reiterate disapproval of the instruction first considered in which the court told the jury that, when a defendant testifies as a witness, the jury may, in determining the weight to be attached to his testimony, take into consideration “the fact that he is interested in the result of the prosecution,” etc. A similar instruction has been severely condemned by the courts of this state, and I think justly so (see People v. Maughs, 149 Cal. 253, 262 , [ 86 Pac. 187 ]: People v. Bartol, 24 Cal. App. 659, 666 , [ 142 Pac. 510 ]; People v. Borrego, 7 Cal. App. 613 , [ 95 Pac. 381 ]) ; and the instruction is no less objectionable now than prior to the adoption into the constitution of the provision (section. 4%, article VI) that no judgment shall be set aside, or new trial granted, in any case, on any of certain indicated grounds, “unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice. ’ ’ While the instruction in this case is not quite as objectionable as the one…

Defendant was convicted of the crime of embezzlement. He appeals from the judgment of conviction and from the order denying his motion for a new trial. There is no dispute as to the principal facts in the case. The sole question presented as tó the evidence is: Did it establish the crime of larceny or that of embezzlement?

Briefly, the evidence was that on the afternoon of December 14, 1916, defendant went to the livery-stable of the prosecut ing witness, one Silverose, in the city of Merced, and stated to him that his name was Miles and that he wanted to hire a horse and buggy to go to Atwater, a short distance from Merced. Silverose rented the rig to defendant upon defendant’s promise to return the property that evening, for the charge of $1.50. Not having returned the property as promised, Silverose began inquiry the next day, and on December 26, 1916, located it at the livery-stable of one Watson, at Livingston, in the county of Merced, to whom defendant had sold it Defendant testified that he conceived the intention of stealing the property before he went to Silverose’s stable. It is stated in his brief: “He practically admitted the taking and carrying away of the outfit and…