Opinion
Rehearing Denied Oct. 23, 1926.
Appeal from Superior Court, Sacramento County; Charles O. Busick, Judge. Bernard P. Allison was convicted of burglary, and he appeals. Affirmed.
COUNSEL
Donald McKisick and J. S. Daly, both of Sacramento, for appellant.
U.S. Webb, Atty. Gen., and J. Chas. Jones, Deputy Atty. Gen., for the People.
OPINION
HART, J.
The defendant was convicted by a jury in the superior court of Sacramento county of the crime of burglary, and he appeals from the judgment of conviction and the order denying his motion for a new trial.
The points raised here are that the evidence is insufficient to support the verdict of conviction, that there were errors in rulings by the trial court upon the question of the admissibility of certain testimony, and that certain parts of the court’s charge to the jury embraced erroneous statements of the law. The point first stated involves the claim that there was no testimony introduced by the people to support conviction but that of an accomplice uncorroborated by other testimony or evidence tending to connect the accused with the commission of the crime.
The facts as they will here be stated are taken from the testimony of the witnesses introduced by the people. On the 1st day of February, 1926, about 5 o’clock p. m., box car No. 2100 of the Northern Electric Railway Company was loaded with freight, including a crate of hams, at the freight sheds of said company, at Second and M streets, in the city of Sacramento. After being loaded the doors of the car were sealed by an employee of said company and the car thereupon switched to the company’s yards near Twentieth and B streets in said city, there to remain until attached to a freight train scheduled to leave the yards for its destination about 10:30 o’clock p.m. Upon its arrival at the yards (called Haggins yards), an inspector of the company examined the car and found that "it had been and was sealed on both sides." This inspection was made near the hour of 8 o’clock p. m. Between that hour and the hour (10:30 p. m.) scheduled for the departure of the freight train, with car No. 2100 attached thereto, from the Haggins yards, the said car was broken open and about one-half of the hams contained in the crate in the car were removed therefrom. The theft was discovered just prior to the time at which the freight train was to be started on its way. Immediately thereafter the crime was reported to the police office in Sacramento, and subsequently one Daniel E. Speascock and later the defendant and one Hudson were arrested and charged with the commission of the offense. These parties having later been given a preliminary examination before a magistrate on a charge of burglary in that they entered said car with the intent to steal personal project situated therein, and held to trial in the superior court of Sacramento county, were in due time informed against by the district attorney of said county for said crime. Upon his arraignment on that information, Speascock pleaded guilty, but made an application to be admitted to probation. The defendant entered a plea of not guilty and stood trial, with the result as above indicated. What disposition was made of the case against Hudson this record does not disclose, but this is a matter of no consequence here. The application of Speascock for probation had not been acted upon at the time of the trial of this case. However, Speascock testified for the people, and his was the only testimony directly connecting the defendant with the commission of the crime. His story, as given from the witness stand, in substance, was: That he and Hudson met the defendant early in the evening of February 1, 1926, in a pool hall, in the city of Sacramento; that the three together went to the Haggins yards of the Northern Electric Railway Company and there entered an empty box car with the intention of sleeping during the night; that after they had been in the car for a short period of time, the defendant left the car, and later called for Hudson, who thereupon also left the car and joined defendant; that, within a short time thereafter, either Allison or Hudson called for him (Speascock), and that he thereupon left the car. Speascock, continuing, stated that, on getting out of the car, he saw defendant and Hudson in car No. 2100, and that, while he (Speascock) remained on the ground, "one of the boys" (referring to defendant and Hudson) asked him (witness) to take the hams as they were handed to him from said car by defendant and Hudson; that he did so and piled the hams on the ground; that, after a large number of hams were so taken, defendant and Hudson left the car and the three thereupon wrapped the hams in defendant’s overcoat and thus took them to a point about 150 feet from the yards and there secreted them. Speascock testified that, prior to being called from the car which had been entered by the three for the purpose of taking a sleep, nothing was said or suggested about breaking open any car or entering any car for the purpose of taking therefrom any articles or goods therein contained; that he knew nothing of the purpose of defendant in leaving the car which they had entered to rest or his purpose in calling Hudson and later himself from said car until after he had left the car and found defendant and Hudson in car No. 2100, and after either Hudson or defendant had asked him to take the hams as they delivered them from the last-mentioned car. After the arrest of the trio, Speascock accompanied a police officer to the spot where the hams had been hidden by the thieves, and there they were recovered.
The defendant claimed and undertook to establish an alibi, and, to that end, testified that he was not with Speascock and Hudson at the Haggins yards of the Northern Electric Railway Company on the night of February 1, 1926, or at any other time; that he did not at any time enter the car in which the stolen hams had been placed for shipment and had no part in stealing the hams, if they were stolen. The record of Speascock’s arraignment on the charge of burglarizing the car in question of which he, Hudson, and the defendant were by information jointly accused, and his plea of guilty to said charge prior to the trial of this case, was introduced in evidence by the defendant.
Section 1111 of the Penal Code reads as follows:
"A conviction cannot be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof. An accomplice is hereby defined as one who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given. "
It will be noted that the Legislature has seen fit, as is evidenced by the last clause of said section (and which, as above quoted herein, has been put in italics), to impart to the word "accomplice" a much more restricted signification than it naturally or intrinsically imports, or than it bore at common law and under our Code prior to the amendment of said section by adding thereto said clause by the Legislature of 1915. At common law the word "accomplice" "was interpreted broadly to include principals and every degree and accessories before and after the fact. Those who ‘receive, relieve, comfort or assist’ the felon were regarded as having participated in his crime, and as meriting much the same punishment that he had earned." People v. Coffey, 161 Cal. 433, 439, 119 P. 901, 903 (39 L. R. A. [N. S.] 704). In other words, both at common law and in the jurisdiction of the federal courts the settled and accepted definition of an accomplice includes "all particeps criminis, whether they are considered, in strict legal propriety, as principals in the first or second degree, or merely as accessories before or after the fact." In re Rowe, 77 F. 161, 23 C. C. A. 103. See, also, People v. Ah Gee, 37 Cal.App. 1, 5, 6, 174 P. 371. But clearly it was and is within the constitutional competence of the Legislature to give its own definition of an accomplice, or to describe and fix the status, technically, of an individual with respect to any crime in the commission of which he has participated in a manner different in any essential particular from the manner in which another has participated in the commission of such crime. People v. Coffey, 161 Cal. 433, 438, 119 P. 901, 39 L. R. A. (N. S.) 704. Under our Code, as it now reads, to be an accomplice, a person taking part with another in the commission of a crime must, in act and intent, have committed precisely the same crime as that of which the facts disclose that the latter is guilty. In the instant case, if, as the jury found to be so, the defendant was guilty of burglary, then, to constitute the witness Speascock an accomplice, within the meaning and purpose of section 1111 of the Penal Code, he, too, must have been guilty of burglary growing out of the same criminal transaction, and whether Speascock was an accomplice of the defendant, or, in other words, was also guilty of committing the burglary, is the first question which defendant presents for consideration and decision on this appeal. It is plain to us, however, that, as to that question, the evidence is such as clearly to make the question one of fact for the jury to determine, and that the verdict occludes further consideration thereof by this court. The settled rule is that where, as here, "the facts themselves are in dispute, that is to say, whenever the question is whether the witness did or did not do certain things, which, admittedly, if he did do them, make him an accomplice, the jury’s finding, upon familiar principles, is not disturbed." People v. Coffey, 161 Cal. 433, 436, 119 P. 901, 902 (39 L. R. A. [N. S.] 704). As defined by section 459 of the Penal Code, the gist of the crime of burglary is founded on or consists of intent, or is in the entry of any of the buildings or structures enumerated in said section with the intent to commit a crime. Whether a crime actually be committed by the person after thus entering the building or structure or while therein is wholly immaterial, in so far as the constitution of the crime of burglary itself is concerned. The fact of the actual commission of a crime in the building after the felonious entry thereof is merely evidentiary, or, in other words, would be evidence only that the intent with which the entry was made was felonious or was made with the intent to commit a crime in the building or structure entered.
There is no evidence in the record, other than the record disclosing that Speascock, prior to the present trial, entered a plea of guilty to the information charging him jointly with defendant and Hudson with the crime of burglary in that they entered the car in question with a burglarious intent, and the further fact that the three were companions and entered the yards of the railroad company together, ever at any time entered the car in which the larceny was committed. There is no evidence, other than the circumstances just referred to, that Speascock, prior to the time at which the car was entered by the defendant and Hudson, had or was a party to any agreement, either express or tacit, with the latter or either of them, to break open and enter the car in question for any purpose, of had any understanding with both or either to that effect. To the contrary, the only direct testimony regarding Speascock’s part in the criminal transaction was that of Speascock himself, and, as seen, he testified that he did not at any time enter the car and did not at any time know that the intention of defendant and Hudson was to enter the car for any purpose until called either by defendant or Hudson from the car into which the trio had previously entered to take a sleep, after defendant and Hudson had left the last-mentioned car, when, upon leaving said car, he found his two companions in the burglarized car and was asked by them to take the hams as they passed them out. If Speascock’s testimony is true, then, while perhaps guilty of larceny, he obviously was not guilty of burglary. The fact, however, that Speascock, for some hours prior and down to the time of the commission of the burglary, had been and was in the company of defendant and Hudson, and the further fact that he participated in the larceny of the hams, constituted circumstances of such worth only as the jury, in the exercise of a legally measured discretion, might ascribe to them, tending in some degree to show that he, by previous agreement or understanding, joined in the commission of the burglary. Therefore a conflict may well be said thus to have arisen in the evidence upon the question of Speascock’s guilt of the crime of burglary, and hence the question whether he was an accomplice of the defendant in the commission of the crime of burglary became, as before stated, peculiarly one for solution by the jury. Evidence of the fact that Speascock entered a plea of guilty to the information jointly charging him, defendant, and Hudson with the crime of burglarizing the car would undoubtedly be competent and proper as in impeachment of Speascock’s testimony that he knew nothing of the intention or purpose of defendant and Hudson to break open and enter the car until after that act had been committed by the latter, but that would be as far as its probative purpose would extend. It has properly been held that where two persons, jointly charged with the same offense, have been separately tried, the verdict in the case first tried, whether of conviction or acquittal, would not constitute competent evidence of the guilt of innocence of the other subsequently tried for the same offense. See People v. Creegan and Becker, 121 Cal. 554, 53 P. 1082; People v. Lichtenstein, 22 Cal.App. 592, 614, 135 P. 692, 702. One sufficient reason for this rule is that the evidence in the case already tried might be entirely different from that in the other-either more or less persuasive of guilt. In People v. Lichtenstein, supra, it is further suggested, among other things, upon this proposition:
"The judgment of one jury or that of a judge upon the same facts would amount to a mere conclusion or opinion of a set of individuals or of one individual from the evidence produced, and a conclusion or an opinin of that sort is never permissible in the proof of a disputed fact. It possesses no probative value."
So, it is in principle the same where a plea of guilty to an information or an indictment is entered by the accused. Such plea represents merely the conclusion of the accused from the facts pleaded. It might transpire that a particular crime charged against a person in an indictment or information is in fact not the crime which the facts, when fully known and clearly understood, disclose was the crime actually committed. Such instances are not wanting in the history of our own state system of jurisprudence. Indeed, it is ofttimes found to be with no little difficulty that the particular crime may definitely or clearly be determined because of the uncertainty characterizing the evidence bearing upon the criminal transaction. It is for this reason that the Legislature of 1905 deemed it not only proper but necessary, to prevent possible miscarriages of justice in certain instances, to amend section 954 of the Penal Code so as to permit the charging of different offenses in an indictment or information where such offenses relate to the same act, transaction, or event. See People v. Piner, 11 Cal.App. 542, 105 P. 780; People v. Miles, 19 Cal.App. 223, 228, 125 P. 250; People v. Plath, 166 Cal. 227, 235, 135 P. 954. Lastly, upon the point in hand, it is to be remarked that, even if it were necessary to concede that proof of the plea of guilty to burglary by Speascock was competent as tending to show that he was a party to the perpetration of said crime and therefore an accomplice of the defendant, within the intent or contemplation of section 1111 of the Penal Code, it would still be true that such proof would amount to no more than the usual character of evidence offered to prove an ultimate fact, subject to be negatived or explained by other evidence, and its verity, like that of any other evidentiary fact, subject either to acceptance or rejection by the jury, in the exercise of a proper legal discretion. Upon this theory of the evidentiary scope of the fact of Speascock’s plea of guilty, the necessary implication from the verdict would be that the jury found that the testimony of Speascock as to his connection with the criminal transaction of which the charge against the defendant is the outgrowth was true, and so found that he (Speascock) was not an accomplice of the defendant in the commission of the burglary. Thus it is clear that from whatever angle the fact of Speascock’s plea of guilty may be viewed, the conclusion of the jury, as implied from their verdict, that Speascock was not an accomplice of defendant in the commission of the crime of burglary, is binding upon this court.
The next assignment involves an attack upon the action of the court in permitting Detective Brown, over objection by defendant, to testify that after the crime had been committed and subsequent to the arrest of Speascock on the charge of burglarizing the car, the last named, when the defendant was not present, gave to Detective Fisher a description of the defendant as one of the parties to the crime and that upon the description so given the accused was later identified by the officers and placed under arrest. Ordinarily the declarations of a witness prior to the time he has been called to testify tending to support his own testimony given at the trial, and made when the accused was not present, are not admissible in evidence for the reason that they are self-serving in character and belong to the hearsay species of evidence. An exception to this general rule, however, is recognized in those instances where evidence is introduced tending to show that the story told by the witness on the witness stand is a fabrication, in which case "it may be shown that the same account [as that given by the witness in his testimony] was given [by the witness] before its ultimate effect and operation (arising from a change of circumstances), could have been foreseen, and also, perhaps, in other peculiar cases." People v. Doyell, 48 Cal. 85, 91, and authorities therein cited; Hotaling v. Hotaling, 187 Cal. 695, 714, 203 P. 745. See, also, People v. Rodley, 131 Cal. 240, 63 P. 351; Cal. Elec. L. Co. v. Safe Deposit & Trust Co., 145 Cal. 124, 78 P. 372; Commonwealth v. Jenkins, 10 Gray (Mass.) 485; 40 Cyc. 2789. In the present case, as we have seen, the defendant claimed an alibi, and the theory upon which the cross-examination of Speascock was prosecuted by defendant’s counsel was that, he himself having committed the burglary, his story was a fabrication concocted and told at the trial upon the promise or in the hope that he would be accorded leniency in the matter of punishment by the officers. If, therefore, the testimony by the police officers that Speascock, immediately after his arrest, and before he had time or motive for manufacturing a false story of how and by whom the crime was committed, had given a detective a description of defendant as one of the parties to the commission of the burglary had been offered as in rebuttal of defendant’s case, we think it is clear that said testimony would have been competent under the exception to the general rule against the admissibility of self-serving declarations by a witness or a party to the action. If the declarations could properly be shown in rebuttal, the fact that they were permitted to be proved out of the due order of proof could not have prejudiced the defendant or any of his substantial rights in the trial of his case. In fact, we are willing to go so far as to hold that, even if the circumstances which authorize the proof of such declarations were not clearly shown to have existed when such proof was tendered, the result of the allowance of the proof was not to prejudice the defendant, since testimony of the declarations could have added nothing to the probative force of the positive testimony of Speascock that the defendant was one of the parties who broke into and entered the car and stole certain of the hams which had been placed therein for shipment. At any rate, we cannot justly hold, upon a consideration of the whole record, that even if the rulings allowing the declarations to be shown were erroneous, a miscarriage of justice has resulted therefrom.
The instructions of which the defendant complains are free from just criticism. On the question of the necessity of corroboration of the testimony of an accomplice, the court instructed the jury in the precise language of section 1111 of the Penal Code. This was sufficient upon that subject. There is no substantial merit in the criticisms of certain other parts of the court’s charge. It is not necessary to consider herein the assignments under this head. It is enough to say that the court’s charge, as a whole, fully, fairly, and correctly embraced and set forth, in language of singular clearness, every principle of law essential to a just and enlightened consideration of the evidence by the jury.
The judgment and the order are affirmed.
We concur: FINCH, P. J.; PLUMMER, J.