Dеfendant, found guilty by a district court jury of theft and burglary and sentenced by the presiding judge to imprisonment for an indeterminаte term, contends on this appeal from the judgment of conviction and from the order denying his motion for a new trial that (1) the trial court committed prejudicial error in admitting evidence of certain extrajudiciаl declarations of an alleged coconspirator, (2) the trial court committed prejudicial error in refusing to give a requested instruction concerning the reason for the rule requiring corroboration оf an accomplice’s testimony, and (3) there was, as a matter of law, insufficient evidence corroborating the accomplice’s testimony. We affirm.
The rule is well established that evidence of extrajudicial declarations of one coconspirator, made during the pendency of the conspirаcy and in furtherance of it, is admissible against every other conspirator, including those who joined the cоnspiracy later, provided that the prosecution lays a foundation for its admission by independent prima facie proof. See, e.g., State v. Thompson,
In the instant case, defendant admits that there was sufficient proof of a conspiracy from October 31 to November 2, 1972, the date of the crime, but argues that thеre was inadequate proof of a conspiracy prior to October 31 and that therefore statements made by coconspirators prior to October 31 should not have been admitted against him. This is reаlly a two-part argument, the first part being that there was no evidence of a conspiracy prior to October 31 and the second part being that even if there was such evidence, it was insufficient because it was hearsay evidence and hearsay cannot “lift itself by its own bootstraps to the level of competent evidence.” Glasser v. United States,
We do not accept defendant’s contentions. We believe first that there was evidence of the existence of a conspiracy prior to October 31. Indeed, the evidence suggests that as early as the spring of 1972, there was at least a tentative agreemеnt on the part of two people, Bruce Roche and Dave Popken, to commit the offensе. We believe further that the “bootstraps” argument relied upon by defendant has no application tо the case where, as here, one of the coconspirators himself takes the stand and testifies tо the existence of the conspiracy. As stated in
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Levie,
Hearsay and Conspiracy,
52 Mich. L. Rev. 1159, 1176, “A foundation proved by testimony on the stand by a сo-conspirator is adequate, for the accused has not been denied his rights of cross-examination, oath and confrontation.” See, also, State v. Binder,
However, even were we tо agree with defendant that the trial court erred in admitting any of the evidence in question, we would be compelled to hold that the error did not prejudice defendant. This is because none of the evidence in question mentioned defendant or in any way connected him to the offenses. The case is similar in this respect to State v. Zabrocki,
Defendant’s second contention is that the trial court committed prejudicial error in refusing to give this requested instruction: “Corroboration is required because the testimony of an accomplice is cоnsidered inherently untrustworthy, primarily for the reason that he may testify against defendant in the hope of obtaining clemency for himself.”
It is a settled rule that the trial court must give cautionary instructions to the jury concerning the weight of the testimony of accomplices. State ex rel. Jeffrey v. Tessmer,
Defendant’s third and final contention is that there was, as a matter of law, insufficient evidence to corroborate Ensrud’s testimony. Applying the proper test — that is, not whether the evidence independently pointing to defendant’s guilt would be sufficient to establish a prima facie case but whether it tends in some reasonable degree to confirm the truth of the accomplice’s testimony as to defendant’s guilt, State v. Cooper,
Affirmed.