People v. McDonald

HOLLZER, J.,

pro tem.

Defendants Pipitone and Cuscio, together with three others named McDonald, Bono and De Maria, were charged with the crime of possessing a still. The cause having been dismissed as to McDonald, the lát

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ter appeared as a witness on behalf of the prosecution. The remaining four defendants were convicted of the offense charged. At the trial defendant Bono admitted he had operated the still under the direction of McDonald, but exonerated all of the other defendants. This appeal is prosecuted by the defendants Pipitone and Cuscio from the judgment of conviction and the orders denying their motions for a new trial.

It is conceded that McDonald was an accomplice. The principal question on this appeal is whether the evidence was sufficient to meet the requirements of section 1111 of the Penal Code with respect to corroboration of his testimony. This section 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.”

Independently of the testimony of the accomplice McDonald, the evidence showed that the still in question was located on certain premises belonging to McDonald. These premises consisted of two dwelling-houses, one being in the rear of the other, together with a garage adjacent to the rear house. The still was in the rear building.

At the time of his arrest the defendant Pipitone attempted to throw away two note-books which contained entries tending to connect him with the defendants in the operation of the still. It further appeared that the defendant De Maria was accompanied by Pipitone at the time the former negotiated for the lease of the rear building, the lease being taken in De Maria’s name. It was also shown that about a month later Pipitone was on the premises in the vicinity of the rear building, and on said occasion he was again accompanied by De Maria. The defendant Pipitone further admitted that 'he had sold large quantities of sugar to McDonald, which were delivered to these same premises.