delivered the opinion of the Court—Cope, J. concurring.
The defendant was indicted and convicted in the Court of Sessions of Shasta County of the crime of grand larceny. It is assigned for error, that the indictment was irregularly found, because found a( a special term of- the Court of Sessions. It is argued that the Court had no power to order the summons of a grand jury for the Special Term. But the statute authorizes-the Court of Sessions to hold Special Terms in certain cases, and no limitation seems to be placed upon their powers, when specially called, as exercised by the Court at a regular term.
The other error assigned is more formidable to the judgment. The defendant was indicted for stealing a steer. The Court charged the jury in effect, that though the defendant killed the steer, believing it to be his own, yet when he appropriated it *440to his own use and benefit, it was evidence of a felonious intent, and the jury will so find.
The charge is liable to several objections. 1. It assumes as a fact, that the defendant did appropriate the steer—which was for the jury—and then the instruction deduces from the mere fact of appropriation the felonious intent, and directs a finding accordingly. In other words, the charge makes the mere fact of the conversion of the property by defendant, conclusive proof of the defendant’s guilt. This is not the law. The jury are the judges of the facts of the taking and carrying away of the property, the title of the property, and of the intent with \ which the property was taken and carried away. (Whart. Cr. Law, 1774.)
For this error the judgment must be reversed, and the cause remanded for a new trial.