Daily Los Angeles herald., 1880-10-23
Supreme Court Opinion.

Filed Oct. 18th, 1880.
THE PEOPLE, ETC, |
vs..
BEN1To vALENzuEL1A 10, 542.,
AND RAFAEL VALEN-
ZUELLA.
The information charged grand
larceny, and the jury found defend
ants guilty as charged.
The Court instructed the jury:
"Under our law u larceny is com
mitted in every county into which
the thief takes the property" The
crime of larceny is complete when
the feloniOus taking or asportation
is consummated; that is, when the
goods are removed from their place
of deposit, or the lawful possessor
is deprived of their possession. If
the party who has been guilty of
larceny In one county can, under
our statute, be indicted and tried
in another county to which he has
removed the stolen property, this
may be convenient rule with re.
spect to procedure, but does not
continue the offense as a mere at.
tempt into the county to which the
property is taken. Certainly one
cannot be convicted of larceny be.
fore a larceny is committed, and
the suggestion, If adopted, that the
larceny-although the thief has OBJ.
tanned entire control of the proper.
ty in one county-is still sin feri''
in the other county ia
which the property is sub.
sequently taken, would lead
to the result that the party
who has feloniously taken and car
ried away personal property could
not be tried where every fact con.
stituting the offense occurred
and to the further conclu.
sion that the crime OF
larceny is not consummated until
the thief is arrested or has parted
with the stolen property. The
section of the Penal Code (7S6)
which authorizes q trial In the
county to which the property has
been brought, authorizes such
trial when the property "has been
taken By larcenV' in another coun-
ty, and contemplates q completed
oHense in such other county.
Nor can it be said that the thief
has committed new larceny In
every county through which he
leads or carries the stolen proper
ty. 1t would hardly be contended
that he could be tried In each coun.
ty as for different crime.
If the foregoing were the only
portion Of the instructions given to
the jury obnoxious to criticism 1t
is possible we might hold that, I'M
der the circumstances, the error
could not have injured the defend
ants. But a like mistake pervades
another portion Of the instructions
The Court said: "When one per.
son engages in the preparation of
larceny and another aids or as.
sists, or knowing that the party is
seeretinQ or making away with the
stolen property, goes with him
and aids in its management and
care, he is equally guilty with him
who steals it," The Court did not
say that such a person "stealsn
the property, but that he is
"equalIy guilty" with him who
steals it. The instruction assum es
the larceny to have been com.
pleted and that the person sup
posed to be equally guiltyn has
had no knowledge of the larceny
before or during the time of its
commission. The jury was told In
effect that If one acquires knowI.
edge that another Is secreting or
disposing Of property already
stolen, and then aids in secretinp
it, or in its disposition, he may be
convicted of the larceny which pre-
coded his acquaintance with the
transaction.
Under our Penal Code (Section
GID an accessory before the fact
may be indicted, tried and pun
ished as principal, but he must be
accessory before the fact. A per.
son in the attitude supposed by the
instruction would be guilty, as ac-
cessory after the fact and should
be tried as such and not as princi.
pal. Section 80 of the Penal Code
provides: "All persons who after
full knowledge that q felony has
been committed, conceal it. from
the magistrate . are
accessories" (After the fact.) The
charge was erroneous.
Section ass of the Penal Code
was not referred to at the arpu.
ment and has no bearing upon the
question before US. That section
relates in terms to property lost lin
the apparent possession Of no one
and found.
Judgment and order reversed
and cause remanded for a new trial.
McKrNsTRY, J.