Opinion
Appeal from the Court of Sessions of Santa Clara County.
COUNSEL:
Wallace & Ryland, F. S. McKinney and F. Hall, for Appellant, cited Whitesides v. The People, 1 Breese, 4; 1 Ch. Crim. Law, 223, 237; The King v. Stevens, 5 East, 244; 1 Stew. & Port. 208; 7 Vermont, 219; 1 Stewart, 318; Highland v. The People, 1 Scam. 394; Willis v. The People, 1 Ibid. 401; 2 Russ. on Crimes, 573.
J. R. McConnell, (Attorney General,) for Respondents.
No brief on file.
JUDGES: Bryan, J., delivered the opinion of the Court. Murray, C. J., concurred.
OPINION
BRYAN, Judge
The defendant was indicted for the commission of the crime of grand larceny; the indictment setting forth that on or about the twenty-fifth day of April, a. d. 1855, the offence of which he was charged was committed. It was also charged that the offence consisted in feloniously taking and driving away three head of cattle. Our statute regulating proceedings in criminal cases has done away with much of the form and ceremony necessary to make a perfect indictment at common law. Under section 246 Compiled Laws, p. 454, an indictment is sufficiently certain as to time if it appear from it that the offence was committed at some time prior to the time of finding the indictment. This fact appears from the record.
Under section 247 Compiled Laws, " no indictment shall be deemed insufficient; nor shall the trial, judgment, or other proceeding thereon, be affected by reason of any defect or imperfection in matters of form which shall not tend to the prejudices of the defendant." It would be sufficiently certain under the statute that the indictment should charge the defendant with feloniously taking three head of cattle, without showing the particular species of cattle taken. The defendant could not be prejudiced in his cause by language of this character.
Under the criminal code of this State, words used in an indictment are to be construed according to their common acceptation, except words or phrases specifically defined by law. As to the third point raised in the record, that the jury in finding a verdict of guilty, under an indictment for grand larceny, should also assess the punishment.
It would seem from the language of the Act, amendatory of the Act of 1850, in relation to grand larceny, Compiled Laws, p. 647, that it was the intention of the Legislature that the jury should only assess the punishment, when in the exercise of their discretion they thought that the defendant deserved the punishment of death. If they did not agree to such punishment upon finding the defendant guilty, then that they should find a general verdict.
Entertaining as we do these views, the judgment of the Court below must be affirmed, with costs.
See People v. Welch , 49 Cal. 180. See 34 Tex. 151.