[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 577 The information charges the defendants with the crime of "grand theft, committed as follows: The said Fred Plum and R.S. Christman on or about the twenty-ninth day of August, A.D. nineteen hundred and twenty-seven, at the county of Yuba, in the state of California, then and there being, did wilfully and unlawfully take, steal and carry away the property of one J.B. Dalby, consisting of five head of cattle, of the value of two hundred twenty dollars." Neither defendant demurred to the information and each of them entered a plea of not guilty. They were both convicted and sentenced to imprisonment in the state prison. This appeal is from the judgment and the order denying a new trial.
At the time of the alleged crime Christman, who is a veterinary surgeon, was meat inspector and health officer of the city of Marysville. Plum owned a meat market in Marysville and a slaughter-house near Ostrom station, about midway between Marysville and the town of Sheridan. J.B. Dalby was a farmer, residing near Sheridan.
August 19, 1927, Dalby called Christman to the farm to treat a sick cow. Christman "looked at the cow" and "said it was a bad case of tuberculosis and there could be nothing done for her." Dalby then requested Christman to test the other cattle on the place and on the following day Christman "injected the cattle with tuberculin, eleven head." He returned on August 23d and "said that out of the eleven there was nine that reacted." Dalby testified: "He advised us to sell the cattle and take a new start. I told him I would sell them to the Pleasant Grove butcher. . . . He said, `If I was you, I would sell them to Fred *Page 578 Plum. I am inspector. I will do the inspecting and see you get a square deal. . . . If you sell the cattle anywhere else there will be chances of loss.' I said, . . . `I don't want anything to do with Fred Plum. . . . I sold him beef cattle and he owes me thirty or forty dollars that he has owed the last six or eight years.' He says, `There is plenty of money behind the business now and you are safe in selling the cattle there.' . . . I says, `All right. If that is the case, Fred Plum can have the cattle.'" August 25th Christman again went to the farm and there branded the nine head of cattle with the letter "T" on the left jaw. At that time he gave Dalby a written estimate of the weights of the condemned cattle and stated that they should bring one cent a pound below the San Francisco market. On August 27th Plum appeared at the farm and purchased seven head of the cattle at the estimated weights and price suggested by Christman. He gave Dalby a check for $50, on the back of which was indorsed, "Subject to inspection. Balance to be paid after cattle are inspected and passed." Later, on the same day, six of the cattle were taken to Plum's slaughter-house. The seventh one was taken August 29th, about the middle of the afternoon. Dalby testified that he saw the six head of cattle in Plum's corral at the slaughter-house a "little after" noon on Monday, August 29th; that on August 31st he saw Christman in Marysville, who stated that he had inspected two of the cattle, two calves; that they "passed all right," and that he "would go down that Wednesday evening and inspect the balance and notify us by mail on September 1st as to the result of the inspection"; and that on September 3d he received a letter from Christman reading as follows:
"Dr. R.S. Christman, D.V.M. Phone 334. "Office of "City Health Officer "City Hall,
"Marysville, California, September 2nd, 1927.
"Mr. J.B. Dalby, "Sheridan, California.
"Dear Sir:
"The first of the month has kept me exceedingly busy, hence the delay in my promised note to you, but will say I regret very much the fact that I had no alternative other *Page 579 than to condemn all of the cattle delivered by you to Mr. Plum's slaughter house, excepting the first two veal slaughtered.
"Out of my seven years experience as a Meat Inspector I have never encountered such a virulent type of tuberculosis. They were lesionized throughout, which means generalization.
"Yours very truly, "CITY OF MARYSVILLE, "R.S. CHRISTMAN, "Meat Inspector."
Clarence J. Dalby, a son of the witness last mentioned, gave testimony to the same effect as that stated.
Lester Mitchell testified that he had been "following the trade of butcher" for about twenty years; that he had worked for two years under federal inspection and two years under state inspection; that he had charge of Plum's slaughter-house from August 10th to the latter part of September; that during that time he lived at the slaughter-house with his family; that he butchered all of the Dalby cattle on August 30th and put the carcasses in the ice-box, hanging them separately in accordance with instructions given him by Plum; that he is "acquainted with the signs of tuberculosis in cattle, that is, butchered stuff"; that there were no signs of tuberculosis in the carcasses of the Dalby cattle; that he saw Plum in Marysville during the evening of the same day, at which time Plum "asked me how the cattle butchered out, the Dalby cattle. I said all right. He said they were reactors. I said no, they were all right. . . . He said, `Don't you see what I mean? They are reactors. They are supposed to go down.' And I said, `You can't get away with those calves,' and he says, `Maybe I can't get away with the calves, but the other five are supposed to go down'"; that Plum there stated "that the cattle were to be sold and the Dalbys to be told they were destroyed"; that the witness sold the carcasses on Plum's instructions on September 1st, some of them in Sacramento and some in Roseville; that in the evening of that day he delivered to Plum "the receipts, or tags, for the weight and price that I had sold to the different shops"; that Plum said, "It is too much to split with Dr. Christman"; that Plum then "deducted from eight to fifteen *Page 580 dollars a head off of that" and said, "That looks better now. It is too much money for Mr. Christman to split"; that three or four days later "Plum came out with Dr. Christman" and "Plum called me off to one side and whispered to me that Dalby was making an investigation of his cattle and if he came there and asked me if I tanked them to tell him yes"; that on August 31st Christman appeared at the slaughter-house and stamped the carcasses of the Dalby cattle, "Marysville Health Department. Inspected and passed," stamped them "with seven stamps on each side"; that at that time Christman "asked me, . . . `Are these the Dalby cattle?' . . . I said, `Yes'"; and that there were no "cattle tanked or destroyed" during the time he was working for Plum.
The defendants and their witnesses gave testimony to the effect that the cattle in controversy were butchered by Mitchell on Sunday, August 28th; that the carcasses were inspected and condemned by Christman on the following day, at which time he cut them down, "sliced them across" and poured coal-oil over them to make them unfit for human food; and that they were then placed in the steam tank and cooked, the tallow then being drawn off and the meat fed to the hogs. There is other testimony corroborating or discrediting the testimony of one side or the other. Enough has been stated to show that the evidence is substantially conflicting on every contested issue.
[1] Appellants contend that under the provisions of section484 of the Penal Code theft "may be committed in four different ways"; that the information charges "theft by asportation" and that "the crime proved is that of obtaining property under false pretenses, which, under section 484 . . . is the third method, or mode . . . of committing theft." Section 484 was amended at the last session of the legislature (Stats. 1927, p. 1046, sec. 1), for the purpose of avoiding such contentions as appellants make. In so far as applicable to the facts of this case it reads as follows:
"Every person who shall feloniously steal, take, carry, lead, or drive away the personal property of another, or who shall fraudulently appropriate property which has been entrusted to him, or shall knowingly and designedly, by any false or fraudulent representation or pretense, defraud *Page 581 any other person of money, labor, or real or personal property, or who causes or procures others to report falsely of his wealth or mercantile character and by thus imposing upon any person, obtains credit and thereby fraudulently gets or obtains possession of money or property or obtains the labor or service of another, is guilty of theft."
At the same session section 952 was amended (Stats. 1927, p. 1043) to provide: "In charging theft it shall be sufficient to allege that the defendant unlawfully took the property of another." If the words "steal and carry away" were omitted from the information it would be in the precise form prescribed by the statute. It is not perceived that the defendants have suffered any possible prejudice from the use of those words in the charge and they may be treated as surplusage. Under similar provisions of the statutes of Massachusetts it is said that the effect "is to put it beyond a doubt that the former crimes of larceny, embezzlement, and the obtaining of property by false pretenses, are now merged into the one crime of larceny. . . . This legislation was intended to do away with the possibility of a criminal indicted for one of the three crimes mentioned escaping punishment by reason of its being afterwards found that his crime was technically one of the other two mentioned. A typical case of this kind is Commonwealth v. O'Malley, 97 Mass. 584. In that case the defendant had obtained by a trick possession of the money of an ignorant woman for a temporary purpose, and had fraudulently converted it to his own use. He had been prosecuted for larceny, but had obtained an acquittal because the judge before whom he was tried believed his crime to have been embezzlement. He was then indicted for embezzlement, and was convicted. But it was held by this court that his offense was really larceny and not embezzlement, and he was thus enabled wholly to escape punishment. It was the object of the legislature to prevent for the future similar scandals in the administration of justice, by doing away with the merely technical difference between three cognate and similar offenses. The only way in which this reformatory intent can be effectuated is to allow the jury, upon the material facts which are the ground of a charge of larceny, to consider whether these facts show a taking of money or other property, by trespass from the possession of its owner, *Page 582 a fraudulent conversion of it while properly in the possession of the wrongdoer, or an obtaining of it by criminal false pretenses, . . . and in either of these cases to convict of the larceny." (Commonwealth v. King, 202 Mass. 379, 388 [88 N.E. 454].)[2] Adapting the language of the King case, the effect of section 484 of the Penal Code is that the former crimes of larceny, embezzlement, and obtaining property by false pretenses are merged into the one crime of theft. A statutory form of charging such crime of larceny, substantially as provided by section 952, was upheld in Commonwealth v. Farmer,218 Mass. 507 [106 N.E. 150], and Commonwealth v. Carver, 224 Mass. 42 [112 N.E. 481]. In the Farmer case, where the defendants had obtained property by false representations, it is said: "The indictments in all counts followed the short forms set forth in the criminal pleading act, R.L., c. 218. The constitutionality of the statute in this respect has been sustained in several decisions. It now is unnecessary to do more than summarize the conclusions reached. The word `steal' used in the indictment for larceny has become a term of art and includes the criminal taking of personal property either by larceny, embezzlement or false pretenses. . . . The provisions of R.L., c 218, par. 39, require a bill of particulars setting out adequate details where the indictment alone does not sufficiently inform the defendants, and this as matter of right." In People v. Hanaw, 107 Mich. 337 [65 N.W. 231], it is said: "We think that it is within the power of the legislature to prescribe the form of indictments, keeping in view the constitutional right asserted in this case; and where, as in embezzlement, a defendant has a right to have the charge made certain by examination or by bill of particulars, it cannot be said that he is not informed of the nature of the charge." (See, also, Commonwealth v. Bennett, 118 Mass. 443, 452; Commonwealth v. Wakelin, 230 Mass. 567 [120 N.E. 209], and State v. Hodgson, 66 Vt. 134 [28 A. 1089].) Sections870 and 925 of the Penal Code require that the testimony in a criminal case taken at a preliminary examination or given before a grand jury be taken down by a stenographic reporter and, in the event of the commitment of the defendant for trial or his indictment, that he be furnished with a transcript thereof. Such transcript, together with the indictment or *Page 583 information, certainly informs the defendant of the nature of the charge against him as fully as would a bill of particulars.
[3] The defendants introduced in evidence Christman's official report as meat inspector for the month of August, showing that on August 29th he condemned as tubercular five beeves belonging to Plum. They also introduced, over the objection of the district attorney, a similar report for September, which showed that three of Plum's cattle were condemned September 14th, but none on any other day during that month. In admitting the latter report in evidence the court said: "I don't think it is material." The statement of the court is correct. The witnesses for the defendants testified that the cattle in question were inspected by Christman on August 29th and those for the prosecution testified that they were inspected on August 31st. In either case the results of the inspection would naturally be contained in the August report and the report for September, therefore, was immaterial.
Plum testified that on August 30th he purchased a bull calf. It may be conceded that this testimony was material. The defendants then offered in evidence a bill of sale of the calf to Plum, but objection thereto was sustained. The alleged bill of sale was not made a part of the record. It does not appear when or by whom it was executed or what were the contents thereof. It cannot be determined on this appeal, therefore, whether the instrument was material.
The court instructed the jury in the language of section 484 of the Penal Code, defining the crime with which the defendants are charged. "Ordinarily it is best to give an instruction in the language of the statute defining the crime." (8 Cal. Jur. 326.)[4] It was for the jury to determine from the facts proved whether the taking of the property was "by trespass from the possession of its owner, a fraudulent conversion of it while in the possession of the wrongdoer, or an obtaining of it by criminal false pretenses." (Commonwealth v. King, supra.)
[5] The appellants complain of the court's refusal to give four of their proposed instructions on the subject of conspiracy. Three of these proposed instructions are indorsed as refused because first proposed during or after the argument, a court rule requiring that proposed instructions *Page 584 must be in the judge's hands prior to the argument. The instructions are framed on the erroneous theory that proof of a conspiracy was necessary to warrant a conviction of either defendant, and one of them expressly so states. The defendants were not on trial for conspiracy. Certain admissions and declarations made by Plum were proved as evidence of his guilt, but the court repeatedly instructed the jury, at Christman's request, that such admissions and declarations could not be considered as evidence against Christman. Under such circumstances it was not necessary to instruct the jury on the subject of conspiracy. The case is unlike that of People v.Geiger, 49 Cal. 643, 649, where it is said: "We think there was sufficient evidence of the conspiracy between Alexander and the defendant to justify the court in admitting in evidence the declarations of the former made previous to the alleged killing. The question of conspiracy was then submitted to the jury, with instruction to disregard the declarations of Alexander, unless the conspiracy was satisfactorily proved. This was the proper practice." (See, also, People v. Fehrenbach, 102 Cal. 394, 398 [36 P. 678], and People v. Dixon, 94 Cal. 255, 257 [29 P. 504].) The court instructed the jury fully, and as favorably to the defendants as the law warrants, on the law applicable to every element of the crime charged, including an instruction that "every single fact which is necessary for drawing the deduction of guilt must be proved by evidence which satisfies the mind and consciences of the jury to a moral certainty and beyond a reasonable doubt."
The usual contention is made that the district attorney was guilty of prejudicial misconduct in his argument to the jury. The remarks of which complaint is made are so clearly within the bounds of legitimate argument that it is deemed sufficient to so state.
[6] At the hearing of their motion for a new trial the defendants read into the record and offered in evidence an affidavit in which the affiant stated: "That Viola M. Downing was one of the jurors who sat as a trial juror in the above entitled case; that on the 15th day of October, 1927, and after the said Viola M. Downing had been summoned as one of the jurors in the above entitled case, but before her examination, the said Viola M. Downing was present *Page 585 at her place of business, 402 1/2 D Street, Marysville, and in the presence of affiant said Viola M. Downing stated that if she was summoned to appear on said jury and if she was called, she would hang Fred Plum, one of the defendants herein, because her mind was made up that Plum was guilty." The record does not show when the defendants first discovered the alleged bias of the juror, or whether testimony as to her qualifications was such as to show bias or to put the defendants upon further inquiry. The minutes of the trial show that the defendants did not exercise all of their peremptory challenges. Counsel for defendants stated that their own affidavit shows that they "had no knowledge of such a state of facts," but they did not take any steps to make such affidavit a part of the record and it is not contained in the transcript on appeal. Under the circumstances stated, the affidavit quoted is wholly insufficient to show that the court erred in denying a new trial.
The judgment and the order are affirmed.
Hart, J., and Plummer, J., concurred.
A petition for a rehearing of this cause was denied by the district court of appeal on February 21, 1928, and the following opinion then rendered thereon: