Opinion
APPEAL from an order of the Superior Court of the city and county of San Francisco granting a new trial.
COUNSEL:
Attorney-General Marshall, for Appellant.
M. S. Horan, for Respondent.
OPINION
ROSS, Judge
The facts are stated in the opinion of the court.
Defendant was indicted and tried for the larceny of one hundred and five dollars, the personal property of one Henry Williams. On the trial the person to whom the money was alleged to have belonged was examined as a witness and testified, among other things, that his name was Henry Williams. In due course the defendant was convicted, and afterwards moved for a new trial on the ground of newly discovered evidence -- the alleged newly discovered evidence consisting in the fact that the owner of the stolen property was not Henry Williams, but was Henry Williams Brocken. In support of this motion the person spoken of as Henry Williams was permitted to testify in the court below that his true name was Henry Williams Brocken, and that he was so known by his friends and associates. He admitted, however, that he sometimes used the name Henry Williams in correspondence. And further, "I gave the name Henry Williams instead of Henry Williams Brocken, because I did not wish my own name to go into print." The court below granted defendant a new trial. In this there was error. The testimony on which the order was based itself shows that the person from whom the money was stolen was sometimes known as Henry Williams, and so held himself out. There was no doubt as to his identity. Order reversed.
McKEE, J., and McKINSTRY, J., concurred.
The judgment was subsequently made final by the approval of MORRISON, C.J., ROSS, J., and McKINSTRY, J.