Hart

The Justices of the district court of appeal for the third appellate district having given their respective opinions in this cause and being unable to agree in a judgment therein, the matter is brought to ■ this court for disposition.

The appellant, T. J. Hart, was jointly informed against with Evan Davis and James Flood for the crime of grand larceny. Davis, on his' arraignment, pleaded guilty to the charge. .What became of Flood the record does not disclose. The appellant was tried, convicted, and sentenced to four years’ imprisonment in San"Quentin, and from the judgment of conviction and the order denying his motion for a new trial, he appeals.

The evidence adduced at the trial of defendant Hart established that on October 7, 1906, the prosecuting witness Fred Dowane went from Wheatland to Marysville, reaching the latter city about dusk. He had with him about fifty-five dollars, consisting' of two twenty-dollar pieces and some smaller gold and some silver coin. ' Immediately on reaching Marysville he went to Dempsey’s saloon, which he had been accustomed to visit, and there met the defendant and Flood and proceeded to treat them and other persons in the barroom. After…