THE PEOPLE v. WILLIAM WILLIAMS, 59 Cal. 674

Morrison, C. J.: The defendant was convicted of the crime of larceny, and a new trial having been denied him, appeals from the judgment as well as from the order denying his motion for a new trial. During the progress of the trial, and before the jury retired from the. court-room, the Court ordered the defendant into the custody of the Sheriff. The defendant had been regularly admitted to bail, and it is claimed that it was error to make the order complained of. We can not see how the substantial rights of the defendant were prejudiced by the order, even conceding it to have been erroneous.

We are of the opinion, however, that it was within the power of the Court to order the defendant into custody as soon as the trial commenced.

Section 1129 of the Penal Code provides as follows: “ When a defendant who has given bail appears for trial, the Court may, in its discretion, at any time after his appearance for trial, order him to be committed to the custody of the proper officer of the county, to abide the judgment or further order of the Court, and he must be committed and held in custody accordingly.” The defendant’s counsel contends that the above

section of the Code is unconstitutional, inasmuch as it violates the right of bail secured by the Constitution. We do not think, however, that the position is well taken; and in this view we are sustained by the decision of the Court in the case of The People v. Beauchamp, 49 Cal. 41. It is there said: “In this case the prisoner seems to have absconded after the cause was given to the jury and before their return into Court.

The growing frequency of occurrences of this character, thwarting the administration of criminal justice, would suggest the propriety in all trials for felony, of promptly ordering the prisoner, regardless of his previous admission to bail, into actual custody, at the commencement of the trial, or immediately upon the retirement of the jury, to consider their verdict.” We fully agree with the former Court in its view of the propriety of ordering a defendant who is being prosecuted for felony, and who is at large on bail, into the custody of the proper officer at the commencement of the trial. 'This would prevent an escape and would subserve the ends of justice.

The next point is that the charge of the Court to the jury was not warranted by the evidence. The Court, in stating the circumstances which might be considered evidence of guilt, enumerated certain circumstances which did not appear in the evidence in the case; but this was simply by way of illustration, and could not have had any prejudicial effect upon the minds of the jurors.

The instructions are very clear and full, presenting the law applicable to the case in a very satisfactory manner, and we find no objection to them, or any of them, sufficient to justify a reversal of the judgment. (Reported swpra) The third point is, that the evidence was insufficient to sustain the verdict.

It is a cardinal principle in the administration of criminal law, that the province of weighing the evidence belongs exclusively to the jury, and if this Court can find from an "inspection of the record that there was, in the whole evidence of the case, enough to justify the conclusion arrived at by the jury, the judgment of the Court below will not be disturbed. The corpus delicti, the fact that the cattle had been stolen, was clearly proved, and the.only question upon which there could have been a reasonable doubt, was as to the identity of the defendant.

Two men were seen driving the cattle in a southern direction, in the night-time. One of the witnesses for the prosecution testified that he saw them driving the cattle, and had a conversation with one of them; and he afterwards saw the defendant in the County Jail and had a conversation with him there.

It is true that this witness does not swear positively that the defendant is one of the two men whom he saw driving the cattle at the time above mentioned; but he does swear in such a manner as to leave but little, if any doubt, that he believed the defendant to be the same man whom he saw with the cattle and with whom he conversed on the occasion referred to.

The witness testified very cautiously, and was evidently unwilling to commit himself; but when his testimony is taken in connection with other facts in the case, the whole evidence amounts to sufficient proof to justify and support the verdict of conviction. It was proved that the cattle had heen stolen from the owner, one Biggs, in the county of Sacramento, early in the month of October, 1878, and that a portion of them were found shortly afterwards near lone City, in Amador county, and the remainder were found about seven miles west of Modesto, in Stanislaus county.

One Cecil testified that he found a portion of them, and that he drove them into a field belonging to one Blyther, and that, about one hour after-wards, defendant came there and claimed the cattle, saying that “ they are my cattle.” Defendant then attempted to drive the cattle away, but was told that he must come the next morning at ten o’clock, and satisfy witness that they were his. This was about nine o’clock at night. The defendant also made a statement respecting the place where he had lost the cattle, which was apparently false.

Defendant did not return the next morning, or at any other time, and claim the cattle. We have reviewed a portion of the evidence only, there being other circumstances in the case tending to establish the defendant’s guilt. The case seems to have been fairly and ably tried in the Court below, and the learned Judge who tried the case, being satisfied with the conclusion arrived at by the jury, denied defendant’s motion for a new trial. We see no good reason to set aside the proceedings of the Court below, and the judgment and order are therefore affirmed. Thornton and Sharpstein, JJ., concurred.