DRAPEAU, J. pro tem.* On March 28, 1956, 26 pairs of men’s slacks disappeared from a department store in the San Fernando Valley.
A stock boy working for the store saw a man walking to a Studebaker automobile in the store’s parking lot with a bundle of clothing in his arms. The man put the clothing into the car.
The quick-witted boy took the license number of the car, and reported the incident to one of the store’s executives. This gentleman called the police.
Within a few minutes two officers in a police patrol car saw the same Studebaker, and followed it. The Studebaker stopped at an intersection signal. One man got out and walked rapidly toward a gasoline filling station. One of the officers in the patrol ear took after him, and arrested him.
The other man kept on driving the Studebaker. The officer still in the patrol car followed and arrested him. The purloined pants were in the back of the Studebaker, covered with newspapers.
These two men were charged in two counts, with grand theft, and with conspiracy to commit theft. A jury convicted them on both counts, and they were each sent to the penitentiary. Each had priors.
The following facts appear from the evidence:
These two men, Jack H. Bartlett, and Theron Edward Burnside, met in downtown Los Angeles. Mr. Burnside owned the Studebaker automobile, and they went together in it to the department store. Mr. Bartlett parked the automobile in a lot used by customers of the store. He parked it so that it was heading out.
Mr. Burnside went inside the store to look at a suit of clothes. Shortly afterward Mr. Bartlett went into the store, and to the clothing department where Mr. Burnside was talking to a clerk, and where the slacks were.
While Mr. Burnside was talking to the clerk, Mr. Bartlett stole the slacks. He admitted at the trial that he did; but he said that he took them on two different occasions, and made two trips to put them into the car. It was argued to the jury that this was petty theft at most, for the total value of [576]the stolen slacks was but $260. The jury resolved this argument against both defendants.
Mr. Bartlett did not appeal from the judgment, but Mr. Burnside did.
So this court is concerned mainly with Mr. Burnside’s actions and conduct as shown by the record, from which an inference may be drawn that he and Mr. Bartlett planned the crime, and that he took part in it.
Mr. Bartlett said that after he stole the slacks and put them into Mr. Burnside’s car he drove around the block a time or two, and picked up Mr. Burnside, who then took over the wheel.
After Mr. Burnside was arrested he made an incriminatory statement to a police officer.
The officer’s testimony as to this statement is as follows:
“He stated they were talking over how they could make some money. He said that he knew Jack Bartlett was a booster, and that they went into this store, which was Butler Brothers’ store, with the idea of stealing something, just anything that they could sell and get some money out of.
“He stated that they parked the ear in the back parking lot, that Jack was driving; that they got out and entered Butler Brothers; that he, himself, Burnside, walked over and was talking to a clerk about a suit of clothes; that he noticed Bartlett standing over by the table where the slacks were stacked; that he talked to the clerk about a suit of clothes a few minutes and he turned around and looked, and Mr. Bartlett was gone.
“He stated he looked out the back door or window of the store and observed that the ear was also gone. He stated that he walked out the front door of the store onto the main street, which he indicated to me was Van Nuys Boulevard, and started walking down the street.
“He said that he had walked about two or three blocks when Mr. Bartlett pulled up in his car. He said that Mr. Bartlett slid over and he himself, Burnside, got under the wheel of the car and started down the street.
“He said that he noticed a stack of slacks in the back seat of the car. He said they went down a block or so and then made a turn and hadn’t gone over three or four blocks all together when Mr. Bartlett saw a police car behind him.
“He stated that Mr. Bartlett jumped out at the next corner and he continued on; when he saw the police car coming after him, that he pulled over and waited.
“He stated that he didn’t realize that Mr. Bartlett would [577]attempt to take so many things; that they had no fence to sell this great amount of clothing; that the only thing they had in mind was that whatever they sold they would sell to people on the street.”
Four grounds of appeal are urged:
1. Prejudicial misconduct of the deputy district attorney.
2. That the evidence is insufficient to support the verdict as to count 1.
3. That the evidence is insufficient to show the existence of a conspiracy.
This ground of objection is argued under two heads: (a) That it was error to deny defendant’s motions to dismiss under section 995 of the Penal Code, made before plea and before trial, and (b) that the evidence is insufficient to permit Mr. Burnside’s admissions to go to the jury in any event.
4. Error in instructions.
These grounds of appeal will be discussed in the order stated.
1. The prejudicial misconduct asserted is based upon two parts of the argument to the jury by the deputy district attorney.
First, upon a part of his argument with respect to Mr. Bartlett’s testimony that he took the slacks out of the store on two different trips to the automobile, upon which defendant’s argument that the crime was petty theft was based.
Secondly, comment by the deputy district attorney upon Mr. Burnside’s not taking the witness stand and testifying for himself.
As to the first, the following colloquy among court and counsel is in the record:
The deputy district attorney (arguing). “Now, if he told you that he took them all at one time, we have some evidence here that makes it grand theft. Look at this overall case. Grand theft is a felony. It is the kind of felony where you go to the State Prison, or you go to County Jail.
“In regard to petty theft, there is only one place that the Court can send you, and that is to the County Jail.
“Mr. Graves: I am going to object to any comment by counsel as to what constitutes the punishment for a particular type of felony.
“The Court: The matter of the punishment is not for the jury’s concern.
“Mr. McGinley: I understand that, your Honor. I am not asking that. I am discussing this generally because of the [578]version one of the defendants put on this with respect to the difference between a petty theft by the two takings, as distinguished from a grand theft. I think I am entitled to argue that.
“The Court: You are entitled to argue the difference between the two, what is petty theft and grand theft, but you are not entitled to argue what the punishment for either is. The jury will be instructed to disregard any reference to punishment. They will later be instructed that they are not to give the matter of punishment any consideration whatsoever. ’ ’
As to the second—the reference to defendant’s failure to take the stand—the deputy district attorney said:
“If you were charged with a theft or you were involved in something, wouldn’t you take the stand and tell the jury that you didn’t do it.”
And again: “If you have evidence that is against you and you don’t take the stand and deny any of those things, that is something that the jury can consider.”
No misconduct appears in either instance.
The deputy district attorney’s reference to punishment was incidental to his argument as to the degree of the theft. (Cf., People v. Sexton, 36 Cal.2d 361, 365 [224 P.2d 1]; People v. Dozier, 35 Cal.App.2d 49 [94 P.2d 598].)
And the trial judge promptly advised the jury that they were not to be concerned with the matter of punishment.
Nor was there any prejudicial error in the deputy district attorney’s comments upon defendant’s failure to take the stand and testify in his own behalf. (People v. Dozier, supra, pp. 57-58.)
2. The record shows that there is substantial evidence to support the jury’s verdict as to both counts.
There is no occasion to belabor the time-honored substantial evidence rule, enacted by the people of California in their Constitution, and applied by our courts in hundreds and hundreds of cases in our reported decisions.
Mr. Justice McComb, speaking for our Supreme Court in People v. Crooker (1956), 47 Cal.2d 348, 356 [303 P.2d 753], clearly states the function of an appellate court in reviewing criminal cases: “After conviction all intendments are in favor of the judgment and a verdict will not be set aside upon the ground of insufficiency of the evidence unless the record clearly shows that upon no hypothesis is there substantial evidence to support it.”
3. Defendant’s argument that it was error to deny his [579]motions to dismiss under section 995 of the Penal Code has not been considered. The record of the proceedings before the committing magistrate has not been brought to us. Therefore, there is no basis upon which a ruling can be made by this court. (People v. Scott, 24 Cal.2d 774, 777 [151 P.2d 517].)
So far as the foundation for admission in evidence of defendant’s confession to the police officer is concerned, all that really needs to be said is that it was amply sufficient to support the trial judge’s ruling.
The corpus delicti was definitely established as to count 1, charging grand theft. All that is necessary for admission in evidence of a defendant’s confession is prima facie proof aliunde of the corpus delicti of the crime. (People v. Rupp, 41 Cal.2d 371, 377-378 [260 P.2d 1].)
And the same must also be said as to count 2, charging conspiracy to commit theft. In conspiracy cases when a defendant confesses, but little other evidence is required to prove his guilt. (People v. Steccone, 36 Cal.2d 234 [223 P.2d 17].)
In passing, it should be said that the practice of charging defendants with substantive crimes, then charging them at the same time with conspiracy to commit the same crimes, and trying them on both charges, does not commend itself to this court. That practice adds legal complexities to cases otherwise easy to try, easy for jurors to understand, and easier for appellate courts to review. And within that practice lurk legal pitfalls that will some day cause embarrassment and trouble in the administration of the criminal law.
4. Finally we come to defendant’s complaint about the instructions. They have, of course, been read. As a whole they are fair and complete.
Indeed, the instruction offered by defendant and refused, as to which he asserts error, was an alternate form of an instruction given at his request upon the same principle. This was to the effect that there must be proof of a crime before a defendant’s statements or admissions may be considered by a jury. No error in the instructions given or refused appears in this record.
The judgment is affirmed.
White, P. J., concurred.
Assigned by Chairman of Judicial Council.