Zabriski

Defendants were jointly charged by information with grand theft, in count I thereof, and a violation of section 146 of the California Vehicle Act, in count II. Both counts involved the taking of an automobile alleged to belong to one Julius Sloto. Zabriski pleaded guilty to count II, and Miklauschutz was tried before a' jury which returned verdicts of not guilty as to count I and guilty as to count II. From the judgment entered on such verdict of guilty defendant Miklauschutz has appealed.

It is urged: (1) that the evidence does not support the verdict; (2) that a material variance exists between the allegations of ownership of the automobile taken and the proof.

(1) The evidence shows that the automobile in question was taken from the driveway of its owner, in which it was parked, some time after 8 P. M. of May 2, 1933; that at about 6 A. M. of the next morning the witness Morgan saw the same car being driven at a reckless and excessive speed; that the machine swerved and crashed into two ears parked at the side of the street, and that immediately afterwards Zabriski got out of the car and began to run, followed by appellant about half a minute later. Morgan followed and caught…