Mauritzen

I agree in what is said by Justice McFarland.

I am of opinion that the court erred in refusing the first and third instructions asked by defendant.

I am further of opinion that the verdict is contrary to the evidence. I cannot perceive how any man of ordi *40 nary intelligence could, on the testimony in the record, fail to entertain a reasonable doubt of defendant’s guilt.

The judgment should be reversed, and cause remanded for a new trial.

I concur on the ground that the evidence does not support the verdict. Mr. Gar-diner, one of the owners, testified: “Mr. Hill would- not have accepted the note and twenty dollars for the horses if I had not been satisfied. The money the defendant stated he had in the bank of Seely & Bickford was not to be used in paying for the horses. Defendant ivas to pay for said horses out of the money derived from the sale of the horses, and was to have one week’s time in which to sell the horses and pay for the same. The credit of seven days on said note was to enable him to sell the horses and raise the money and pay for the horses. Defen dant was to pay out of the money the horses brought.” Mr. Hill, the owner of the horses, and who personally negotiated the sale, testified that the defendant told him he did not have the money to spare then to pay for the horses, but if he would give him a week’s time he would pay for them. Defendant was arrested before the expiration of the time given him to sell and pay for them. It is difficult to see how any reliance could have been placed upon a fund which, if it existed at the time, could not be spared to pay for the horses. There was no pretense…

The defendant was convicted under section 532 of the Penal Code of the crime of obtaining three horses from one G. W. Hill by false and fraudulent pretenses. The false pretense alleged was representing to said Hill that the defendant had four hundred dollars on deposit in a certain bank in Napa City when the horses were purchased by defendant of Hill. The evidence is undisputed that, while defendant stated that he had the four hundred dollars in bank, he also told Hill that he did not want to use that money; that Hill must give him a week’s time to pay for the horses; that he would take the horses to San Francisco and sell them, and wanted to make the turn and get the money from the sale at the latter place to pay Hill. Thereupon he paid Hill twenty dollars in cash, and gave him his (defendant’s) note for the balance of the purchase-money, — $380,— payable in a week. Defendant then took the horses to San Francisco. As Gardiner, one of the witnesses for the prosecution, and one of the owners of the horses, testified, defendant was to pay for the horses out of the money derived from the sale of the horses, and was to have one week's time in which to sell the horses and pay for the…