Opinion
Appeal from Superior Court, Sacramento County; Charles O. Busick, Judge.
On petition for rehearing. Petition denied.
For former opinion, see 249 P. 881.
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.
It is in the petition stated that, in our original examination of the record herein, we overlooked certain important and significant portions of the testimony of the alleged accomplice Speascock; that said testimony clearly showed that Speascock was an accomplice of the defendant in the commission of the crime of burglary of which the latter was convicted; that proper consideration of said testimony would have forced the conclusion upon this court that Speascock was such accomplice. The portion of Speascock’s testimony thus referred to was: That he saw a party with a lantern on the right-hand side of the train to which the burglarized car was attached, and that that event occurred, to use Speascock’s own language, "a little bit after we went down there-when we was starting to get into the car. " It is asserted in the petition that the language in italics involved an admission by Speascock that he did enter the burglarized car. Reading that language in connection with the rest of Speascock’s testimony makes it very clear-indeed, obvious-that he was then referring to the open car into which the three men entered for the purpose of taking a sleep prior to the commission of the act of breaking into the car in which the hams were found and from which they were taken. And from the nature of Speascock’s testimony, considered in its entirety, it is difficult for us to persuade ourselves that defendant’s counsel themselves did not fully understand at the trial that Speascock, in making the statement, the language of which is herein put in italics, was then not referring to the burglarized car, but to the car which he and his two companions entered for the purpose of securing shelter and rest for the night. Speascock repeatedly asseverated that at no time did he enter the burglarized car; and, as pointed out in the original opinion, he as often declared that there was no previous agreement or understanding between him and the other parties to enter the car from which the hams were purloined for any purpose whatever. From this testimony and the connection in which he used the italicized language, it is as clear as any proposition can be made that he was not then referring to the burglarized car.
It may well be observed that, even if there was some doubt as to which of the two cars he then had in mind or intended to refer to, it would still be with the jury, in considering and passing upon the question whether he was an accomplice of Allison, to determine whether he referred to the car the parties entered to take a sleep in or to the car that was subsequently entered with burglarious intent, he not having expressly withdrawn his repeated statement that he did not enter the latter car and had no agreement or understanding with his two companions to enter it with the purpose of committing a crime therein or for any purpose.
As is stated in the original opinion herein filed, it is to be conceded that the circumstances pointing to Speascock’s connection with the scheme to commit the crime are very strong. We might, sitting as a jury and hearing the witnesses first hand, have reached an opposite conclusion to that of the jury, as evidenced by their verdict, as to the role Speascock played in the criminal transaction. But this court, in the very nature of the situation, cannot weigh testimony received at nisi prius to ascertain its probative value or force, or, which amounts to the same thing, determine whether any witness is or is not telling the truth, unless his testimony is intrinsically absurd or inherently improbable. If, therefore, there were or appear to be in Speascock’s testimony inconsistencies or discrepancies, which, however, are not of a character to stamp it as inherently improbable and, therefore, unbelieveable, the duty of reconciling such inconsistencies or discrepancies or of accounting for them upon some reasonable hypothesis afforded by the entire testimony itself of the witness, is that of the jury. Speascock’s testimony is not inherently improbable and is not such as to warrant the holding, as a matter of law, that it shows that he was an accomplice of Allison in the commission of the crime of which the latter stands convicted.
The petition for a rehearing is denied.
We concur: FINCH, P. J.; PLUMMER, J.