7 Cal. App. 2d 392 | Cal. Ct. App. | 1935
The defendant was convicted by a jury of the crime of burglary and appeals from the judgment and from the order denying his motion for a new trial. His principal point on appeal is that the evidence is insufficient to sustain the verdict.
The information charged the defendant and also Lester Hobson, Peter D. Bout and John H. Wright with the burglary of a store from which seventy rugs were taken. The defendant Wright pleaded guilty to the charge, and the defendant Hobson made a confession to the police and also admitted the charge in his testimony at the trial. The district attorney dismissed the information against the defendant Bout and thereafter called him as a witness for the People.
The testimony of Bout was that he saw Guihan and Hob-son .talking with Wright the night the rugs were stolen; that he did not hear the conversation and that the three left in about fifteen minutes; that he did not go into the rug store but that some rugs were brought to Wright’s car parked near the place and in which he was seated, and that he and Wright drove away with them. He further testified that he, in company with Wright, met Hobson and Guihan four or five days later. At that time, according to his testimony, either Guihan or Hobson said, when all four were present, “that they didn’t have much trouble getting in, by taking a rock, throwing it on the glass, reaching inside with their arms and opening the door”, and “that they had someone out selling the rugs already, they were expecting the money from it”.
Except for Bout’s testimony there is no evidence connecting appellant with the crime except the testimony of two police officers relating statements alleged to have been made to them by appellant after he was arrested. According to one officer, when appellant was asked about the crime “he said he would help us recover the rest of the rugs; we told "him we had recovered about twenty rugs up to that time, and we told him there was about fifty out standing, something like that; he said he would help us recover the-but he wanted
Bout was an accomplice, and a conviction cannot be sustained upon his testimony “unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the crime; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof”. (Pen. Code, sec. 1111.)
In determining the question of corroboration the testimony of the accomplice must be eliminated from the ease. (People v. Robbins, 171 Cal. 466 [154 Pac. 317].) This leaves no evidence to support the verdict of guilty except the statements of the defendant to the police officers. The meaning of the appellant’s alleged statements that “it is just a dumb beef” is not shown in the record, and without explanation does not convey any meaning tending to connect him with the commission of the crime. The language used may be the equivalent of a positive denial of guilt. The defendant’s other statement that “he would help us recover the rest of the rugs” falls far short of the amount of corroboration required by section 1111 of the Penal Code. Considering it in its most favorable light, it is consistent with the innocence of the accused, and as such cannot amount to corroboration. (People v. Robbins, supra.) At the most it raises only a suspicion of guilt, and more than mere suspicion is required.
The question of the corroboration of an accomplice was discussed at length and the authorities reviewed in the ease of People v. Kempley, 205 Cal. 441, 456 [271 Pac. 478], where it is said: “The question of how much more than a mere suspicion is required in order to constitute corroboration has
The evidence in this case does not measure up to what is legally required for corroboration. The judgment is reversed, and the order denying motion for new trial is reversed.
Conrey, P. J., and Houser, J., concurred.
