MacKey

Defendants, who are brothers, were informed against together and were tried together for the larceny of fourteen calves from the ranch of one Forsberg. Defendant James Mackey was acquitted of the charge, but defendant Albert Mackey was found guilty. The latter appeals from the judgment of conviction and from an order denying his motion for a new trial.

The stolen calves were in the possession of defendants at the time of their arrest and at the trial appellant testified to a state of facts which, if the jury had believed him, would have amounted to a sufficient explanation of defendants’ possession of the calves. The trial court gave to the jury the following instruction:

Except as to minor and unimportant details.this instruction is identical with one approved by this court in People v. Alba, 52 Cal. App. 603 [ 199 Pac. 894 ], but appellant nevertheless contends that the giving of the instruction was error. It will be noted that in the opinion in People v. Alba a certain instruction D9 is referred to as in some degree clarifying the instruction in that case which is practically a prototype of the instruction which we have quoted above as having been given in this case, the…