The demurrer was properly overruled. (People v. Green , 15 Cal. 512; People v. Smith , 15 Cal. 408.)
The instruction of the Court as to the admission of the District Attorney, was correct; the proof was matter of record.
JUDGES: Sawyer, C. J.
OPINION
SAWYER, Judge
The defendant was indicted for the larceny of two hundred and fifty sheep, alleged to be of the total value of one thousand dollars. Defendant demurred, and the ground of demurrer relied on in this Court, is, that the indictment is insufficient, because the value of each sheep is not alleged. Some embarrassment might arise, perhaps, under an indictment in this form, if the proof should only show some particular article, and not the whole of the property described, to have been stolen. But the indictment is sufficient. (2 Bish. Crim. Pr., Sec. 677.)
We think the evidence of Wheeler with reference to his own sheep admissible under the circumstances. This was not evidence of a distinct felony, committed by the same parties at a different time. Wheeler's and Reynolds' sheep were herded together, were driven off together by the same parties, and sold together by the parties driving them off. There was but one act. If Wheeler's sheep were stolen, this fact afforded some ground for an inference, nothing to the contrary appearing, that all, taken at the same time, and under the same conditions and circumstances, were stolen. The evidence being admissible, there was no error in the instruction based upon it.
One Ramon was examined as a witness for the prosecution, and testified that defendant, and another, drove the sheep to the rancho, where they were found, and sold them to the party in possession at said rancho. On cross examination defendant was endeavoring to show that Ramon, himself, had been indicted for the same larceny, whereupon the District Attorney admitted that Ramon was indicted for receiving the stolen property, knowing it to be stolen, and the matter was not pursued farther.
In submitting the case to the jury, the Court, at the request of the People, gave the following instruction: " That there is no proof in this case, that the witness, Ramon, has been indicted, or now is indicted for any crime, and you will not consider the statement of counsel, that indictments are now pending against him in this Court, as there is no such evidence."
We think this was error. The party himself, on cross examination, without objection by the People, had testified that he had been in jail, and supposed he was indicted for the same offense, and the District Attorney cut the matter short by making the admission before referred to. The indictment of the witness was an admitted fact on the part of the prosecution. The District Attorney was competent to make this admission, and there was no occasion to introduce further proof. It was important, as tending to show the position of the witness in relation to the matter, and as affecting his credibility. Yet its consideration was withdrawn from the jury by the instruction given. For this error the judgment must be reversed and a new trial had, and it is so ordered.