Dye
People v. Dye
Opinion
Lead Opinion
Chipman, J.
Defendant was jointly with one L. S. Purdy charged with the crime of grand larceny, and upon his trial was convicted and by the judgment of the court sentenced to six years’ imprisonment in the state prison at Folsom. Defendant appealed from the judgment and from the order denying his motion for a new trial. The charge was that defendant, on the-day of January, 1915, did “willfully, unlawfully and feloniously steal, take and carry away certain personal property, to wit: One one-hundred dollar bill of currency, one twenty-dollar bill of currency and three ten-dollar bills of currency, . . . being then and there of the personal property of one S. Y. Halstead and not the property of said defendant, contrary,” etc.
It is earnestly contended that if any crime was committed it was embezzlement and not larceny; that defendant’s motion that the court instruct the jury at the close of plaintiff’s evidence to acquit defendant should have been granted because of a fatal variance between the evidence and the charge in the information. To pass upon the merit of this contention requires an examination of what occurred after Halstead went to defendant’s place of business.
It appeared from the…
Concurring Opinion
Hart, J.
I concur in the judgment and in all that is said by the presiding justice concerning the effect of the evidence and the justification of the verdict of conviction under the proofs. But I do not think it is necessary to invoke article VI, section 4%, of the constitution, to uphold the court’s ruling in admitting in evidence the extrajudicial statement of the defendant when in the office of the district attorney. The application of said section of the constitution in a case presupposes either error in the ruling as to which it is invoked or a doubt in the mind of the reviewing court as to the correctness of the ruling.
In the first place, the statement of the defendant in the district attorney’s office is not a confession. On the contrary, it involved an explicit and direct denial of guilt of the crime charged or of any crime in connection with the defendant’s transaction with the prosecuting witness. It was, therefore, unnecessary to show, preliminarily to the admission of the statement, that it was voluntarily made or not made under the inducement of hope or fear. (Greenleaf on Evidence, sec. 213.)