Opinion
Department One
Appeal from a judgment of conviction and from an order denying a new trial in the Superior Court of Monterey County. Alexander, J.
The order for a special venire was made January 5, 1881. At the time of making this order, there were in the jury box about two hundred names of persons duly selected by the Board of Supervisors for the year 1880. January 24, 1881, an order was made by the Court, designating the number of grand and trial jurors, and the Board of Supervisors had not met after the making of said order, and no jurors had been selected by the Board to serve for the year 1881. The first regular meeting of the Board of Supervisors for the year 1881, was fixed by law to take place on the first Monday of February, 1881.
COUNSEL
The challenge to the panel should have been allowed. ( C. C. P., §§ 214, 226; People v. Devine , 46 Cal. 47.) The evidence in reference to other horses than those charged in the information to have been stolen was inadmissible. (Cole v. Commonwealth, 5 Gratt. 696; Mailler v. Propeller Co. , 61 N.Y. 312.)
R. M. F. Soto, for Appellant.
A. L. Hart, Attorney General, for Respondent.
The evidenceas to the other horses was admissible. (People v. Rodundo , 44 Cal. 538; People v. Kelly , 28 id. 423.) The order for a special venire was strictly in accordance with the statute. ( C. C. P., § 226, Amendments 1880; People v. Ah Chung .)
JUDGES: McKinstry, J. Ross and McKee, JJ., concurred.
OPINION
McKINSTRY, Judge
The challenge to the panel was properly disallowed. ( C. C. P., §§ 226, 227.)
All the instructions given were given in the exact language requested by the defendant, who can not now object to any of them.
There was evidence tending to prove that other horses disappeared from the same neighborhood at the same time as the mare and colt, with the larceny of which defendant was charged, and tending to show that the others were found, with the mare and colt, in the possession of defendant. Defendant's objection to such evidence was properly overruled. (People v. Robles , 34 Cal. 591.)
Judgment and order affirmed.