People v. Truax

CONREY, P. J.

Appellant was convicted of willfully burning and destroying insured property with intent to de

[472]

fraud the insurer in violation of section 548 of the Penal Code. He appeals from the judgment and from an order denying his motion for a new trial.

It seems to be conceded that the only evidence which tends to connect the defendant with the commission of the crime is contained in the testimony of three witnesses, who by their own admission were accomplices of the defendant, and in the testimony of one Arthur Barnaman. The court refused to instruct the jury that Barnaman was an accomplice, but gave appropriate instructions upon the rules requiring corroboration of the testimony of accomplices.

It is for the jury to determine from the evidence whether as a matter of fact the witness is an accomplice, if the facts are disputed. It is only where, the acts and conduct of a witness being admitted, they necessarily establish the witness’ participation in the guilty act, or guilty relation thereto, that .the court should determine and instruct the jury as a matter of law that the witness is to be regarded as an accomplice.

(People

v.

Coffey,

161 Cal. 433, 436, [39 L. R. A. (N. S.) 704, 119 Pac. 901].) According to his own testimony, the witness Barnaman had heard statements and observed conduct of the defendant which must have warned him that an incendiary fire was contemplated. He said that he knew there was to be a fire at the Bassett house and that after receiving such information, he, at the request of Burright (one of the admitted accomplices), carried a bed to that house, and he supposed that the bed was to be used in connection with the fire. But Barnaman modified this testimony by stating that he had not visited the Bassett house within two weeks preceding the fire; that it was later on, after carryifig the furniture there, that he found a fire was to occur and that he was “only suspicious that that was the particular house” that was to be burned.

However reprehensible the conduct of this witness may have been, we cannot say that this testimony constitutes such an admission of guilty participation in the alleged crime as would warrant the court in declaring him to be an accomplice without leaving the fact to be determined by the jury.