of exceptions settled after the motion was heard and determined. That right was guaranteed to them by Section 1174 of the Penal Code. They are entitled to a record of so much of the evidence, proceedings, and decisions had on the trial of their case as may be necessary to explain the grounds of their motion for a new trial; and to that end it is the duty of the Judge of the Court to settle such a draft of a bill of exceptions when presented to him for settlement, within the time prescribed by Section 1174, supra. (People vs. Keyser, 53 Cal. 184.) Mandate ordered. We concur: McKinstry, J., Ross, J. DEPARTMENT No. 2. [Filed October 1, 1880.] No. 6885. THE PEOPLE OF THE STATE OF CALIFORNIA, RESPONDENT, VS. J. H. BUDD ET AL., APPELLANTS. CRIMINAL LAW-FORFEITURE OF BOND. It is error for the Court to declare bond forfeited because the defendant failed to appear personally at the trial. Such personal appearance not required by the law or the conditions of the undertaking. Appeal from the District Court of the Fifth Judicial District, Stanislaus County. C. C. Wright, for respondents. J. H. Budd, for appellants. MORRISON, C. J., delivered the opinion of the Court: It appears from the record in this case that on the 22d day of October, 1875, an order was made by the Hon. S. A. Booker, then Judge of the Fifth Judicial District, admitting one J. H. McDonald to bail in the sum of $500, and that an undertaking was given in pursuance of said order and the terms of the statute for that amount. The undertaking was signed by the defendants, and the offense charged was a misdemeanor. Afterwards an indictment was found and presented against McDonald, and on the 27th day of March, 1876, the case was regularly called for trial in the County Court of Stanislaus. County, and the defendant being absent he was then and there called by the Sheriff, and failed to appear either in proper person or by attorney; whereupon the County Court made an order declaring the bond entered into by the defendants forfeited. The action is brought upon this bond or undertaking, and the order of forfeiture is relied upon by plaintiff as giving a right of action. The condition of the undertaking sued on is "that the above named J. H. McDonald will appear and answer the charge above mentioned in whatever Court it may be prosecuted, and will at all times hold himself amenable to the orders and process of the Court, and if convicted will appear for judgment and render himself in execution thereof, or if he fails to perform either of these conditions that he will pay," etc. After the indictment was found, the defendant appeared in Court and interposed a plea of not guilty, but did not appear at the time the case was called for trial. The case was not tried, and therefore there was no conviction; but the Court, as has been already remarked, declared the bond forfeited because of the failure of the defendant to be present at the time appointed for the trial. The simple question is, Does the record show a breach of any condition of the bond which justified the order of the Court declaring a forfeiture? Section 977 of the Penal Code provides that "if the indictment is for a felony, the defendant must be personally present; but if for a misdemeanor, he may appear upon the arraignment by counsel." Section 978. "When his personal appearance is necessary, if he is in custody, the Court may direct, and the officer in whose custody he is must bring him before it to be arraigned." Section 979. "If the defendant has been discharged on bail, or has deposited money instead thereof, and does not appear to be arraigned when his personal attendance is necessary, the Court, in addition to the forfeiture of the undertaking of bail or of the money deposited, may direct the Clerk to issue a bench warrant for his arrest." But this is only in cases where his personal attendance is necessary to the arraignment. Section 1043 is as follows: "If the indictment is for felony, the defendant must be personally present at the trial; but if for a misdemeanor, the trial may be had in the absence of the defendant. If, however, his presence is necessary for the purpose of identification, the Court may, upon application of the District Attorney, by an order or warrant, require the 'personal attendance of the defendant at the trial." In this case no such application was made by the District Attorney, and no order of the Court was entered requiring the personal attendance of the defendant. In view of the facts of this case, and the foregoing provisions of the Penal Code relating to proceedings in criminal cases, it is clear to our minds that the defendant was not required to be personally present at the trial, and that there was no provision of law which prevented the Court from proceeding with the trial of the case in the defendant's absence. It was no part of the conditions of the undertaking given by the defendants that the defendant should be present at the trial, and therefore the failure of the defendant to be present in Court when his case was called for trial constituted no breach of the conditions of the undertaking. In the case of The People vs. Ebner, 23 Cal. 159, the Court says: "Section 259 of the Criminal Practice Act provides that if the indictment be for a felony, the defendant must be personally present; but if for a misdemeanor, his personal presence is unnecessary, and he may appear upon the arraignment by counsel.' Section 320 also provides: If the indictment be for a misdemeanor, the trial may be had in the absence of the defendant; but if for felony, he must be personally present.' So also Section 415 provides that in cases of misdemeanor the verdict may be rendered in the absence of the defendant. A forfeiture must be strictly proved. The record discloses that the Court of Sessions had no power or authority to enter a default or to declare the recognizance forfeited." It is provided also by Section 1148 of the Penal Code that "if indicted for a felony, the defendant must, before the verdict is received, appear in person. If for a misdemeanor, the verdict may be rendered in his absence." It will be seen that the provisions of the Penal Code are substantially the same as were the provisions of the Criminal Practice Act. The case of The People vs. Ebner, referred to above, holds that it was error to declare the recognizance of bail forfeited because the defendant failed to appear personally and plead to the indictment; and in this case it was equally erroneous for the Court to declare the bond forfeited because the defendant failed to appear personally at the trial. Such personal appearance was not required by the law or the conditions of the undertaking. The judgment is reversed and the cause remanded, with instructions to enter a judgment in favor of the defendants. We concur: Myrick, J., Thornton, J. DEPARTMENT No. 2. [Filed October 4, 1880.] THE PEOPLE, RESPONDENTS, VS. JOHN NELSON AND JOHN SHERWOOD, APPELLANTS. CRIMINAL LAW. To justify a verdict of guilty of larceny, it is not necessary, under the Code, that the prosecution should prove that the money taken answers the description contained in the information. The fact that the money alleged to be stolen was in the possession of a party from whose possession it was taken by the defendants, is sufficient proof of ownership. If A steal goods from B, and C afterwards steal the same goods from A, C is a felon both as to A and B. Appeal from the Superior Court of Colusa County. MORRISON, C. J., delivered the opinion of the Court: On the 30th day of April, 1880, an information was filed in the Superior Court of Colusa County, by the District Attorney of that county, charging the defendants with the crime of robbery. The accusation is: "That the said John Nelson and John Sherwood, on the 21st day of March, 1880, at and in the County of Colusa and State of California, in and upon one Ah Chung an assault did make, and thereby did place him, the said Ah Chung, in bodily fear and danger of his life, and did then and there feloniously and unlawfully take from the said Ah Chung seven dollars in gold and silver coin of the United States of America, of the value of seven dollars in United States gold coin of America, and more minutely and particularly described as follows: One fivedollar gold piece of money of the value of five dollars in United States gold and silver coin, bearing the imprint upon one side an American eagle, upon the other side of said coin a head of the Goddess of Liberty; the date of the coinage of said gold piece is unknown to your informer. Also, four half-dollar pieces in silver coin of the United States of America, each of said pieces of silver bearing the imprint upon one side an American eagle, and upon the other side the Goddess of Liberty, the date of coinage of said pieces is unknown to your informer. The said four pieces of silver is of the value of two dollars in gold and silver coin of the United States, all of which money was then and there in the possession of Ah Chung, and was then and there the property, goods, and chattels of the said Ah Chung. And the said John Nelson and the said John Sherwood did then and there take from the person, and against the will of the said Ah Chung, the money aforesaid, unlawfully, willfully, violently, and forcibly, and did then and there unlawfully, willfully, feloniously, and forcibly steal, take, and carry away all of said pieces of money, contrary to the form, force, and effect of the statute," etc. The defendants were tried upon the foregoing information, were found guilty of grand larceny, and were sentenced to imprisonment for the term of two years. To the foregoing information a demurrer was filed on behalf of the defendants, which was overruled. In our opinion the information is good, both in form and substance, and therefore the Court committed no error in overruling the demurrer thereto. The bill of exceptions shows that the following was the evidence in the case: "Thereupon the following named witnesses were called, sworn, and examined on the part of the prosecution: Ah Chung, D. W. Wood, Charles Leaven, E. Flagg, and W. H. Brisfield. "Their evidence tended to establish the following facts: That on the morning of March 21, 1880, Ah Chung, a Chinaman, was walking to Colusa on the public highway; that when he started for Colusa he had in his pocket seven dollars-five dollars in one five-dollar piece, and two dollars in four silver half-dollar pieces; that when on the road, within a mile or two from Colusa, in Colusa County, California, defendants stopped him-one of the defendants having a long, dangerous-looking gun; that the defendant having the gun aimed it at Ah Chung, while the other defendant went up to Ah Chung and demanded money, and finally took the money above described from the person of Ah Chung, and then he, with the other defendant, ran away to the brush with the money. "The stolen money was not produced in Court, and there was no evidence introduced tending to show that said fivedollar piece bore upon one side the imprint of the American eagle, and upon the other the head of the Goddess of Liberty, nor was any evidence introduced tending to show that the four silver half-dollar pieces each bore upon one side the imprint of the American eagle, and upon the other the head of the Goddess of Liberty. It was admitted by the defendants that the amount stolen was seven dollars gold and silver coin of the United States, and that the five-dollar piece was worth five dollars, and the two dollars in silver were worth two dollars." * * * * * * |