People v. Sierra

NOURSE, P. J.

Defendant was tried on two counts of an information charging grand theft of electric cable. Counsel was appointed to defend him and by stipulation a jury trial was waived and a trial was conducted by an attorney at law duly appointed as judge pro tern, with the consent of the parties. Defendant was convicted on both counts and sentenced to the state penitentiary. He appeals from the judgment and is here represented by other counsel assigned at his request by this court. Said counsel advanced two grounds for a reversal of the judgment—insufficiency of the evidence, and error in the exclusion of the witness called by defendant. Both grounds are ably discussed in the briefs but neither requires extensive treatment. At the time of the oral argument he moved for an augmentation of the record to show the preliminary examination and commitment.

On the two occasions charged in the information a quantity of lead covered copper cable was taken from a substation of the Pacific Gas and Electric Company in San Jose. In the early morning following the night of the second theft, six men, including defendant, were discovered by a rancher in the act of chipping the lead off the cables. He telephoned the sheriff’s office and restrained the parties until a deputy appeared and placed them under arrest. A quantity of the broken down cables was found in each of the two cars the parties were occupying.

On the trial, witnesses testified as to the ownership and the theft of the material, the observation of the parties engaged in breaking down that taken in the second theft, and the sale of the material taken in the first theft to a junk dealer. Witnesses definitely identified this appellant as one of those who had made "the earlier sales and as one of those observed on the ranch in possession of the material taken in the second theft. The most convincing evidence of appellant’s participation in the crime came from the witness Rodrigues who was an accomplice in both offenses. Respondent cites as corroboration of this witness the active cooperation of, appellant with the witness in the sale of the material, his use of an assumed name in making the sale and his

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active participation with the witness in cashing the checks and distributing the proceeds. To these may have been added the undisputed and unexplained presence of appellant at an early hour of the morning following the second theft. There, in the presence of the ranch owner, the appellant was seen with the witness Rodrigues in possession of the stolen property.