People v. Collum

GAROUTTE, J. Defendant and one Shephard were jointly informed against for the crime of arson. Defendant had a separate trial, which resulted in a verdict of guilty of an attempt to commit the crime of arson in the second degree, and now appeals from the judgment and order denying his motion for a new trial.

It is contended that the evidence does not justify the verdict because it rests upon “the uncorroborated testimony of one Shirley, an accomplice in the commission of the crime.” If Shir[187]ley were an accomplice, there are strong reasons to he urged in support of this contention of defendant. If Shirley were not an accomplice, and the jury believed his testimony, then, when taken in connection with the other evidence in the case, we are not prepared to say that we would disturb the verdict upon the ground of insufficient evidence. Upon examination of the record we find nothing therein even tending to establish the fact that Shirley was an accomplice. An accomplice is one who aids, abets, and assists in the commission of the crime, or, not being present, has advised and encouraged its commission. Shirley did none of these things. He was not connected with the defendant in any way until after the crime was committed. Conceding that under section 22 of the Penal Code he was an accessary, still an accessary is not an accomplice under the law of this State. An accomplice at common law may be said to be an accessary before the fact, but in this State an accessary before the fact is not recognized. The law declares such an one a principal.

Shephard, who was jointly charged with the defendant, had been tried and acquitted at the time of the trial of this case. He took the stand and testified as a witness in defendant’s interest. He testified that he and Collum, immediately prior to the alarm of fire, were upon the streets of the city of Woodland, and upon such alarm being given ran to the fire (a distance of about one mile), and assisted in extinguishing it. He further declared that upon the succeeding day he and defendant talked to Shirley about the fire. The remaining portion of his testimony was directed to the stock of wool on hand in the mill at the time of the fire, the profits and losses of the business, and matters of insurance. Upon cross-examination, under objection, he was asked this question by the district attorney: “Did you say to me .... T have always been a good man. I lived in San Jose, and I could have brought many people from there showing that I was a good man, including the district attorney and other people,’ and did you not further say that 'this man [meaning Phil. Collum] dragged me into this thing, and that he has now run away and left the whole matter upon me, .... and when you find him I will furnish you facts that will send him to hell?’ ” The objection was overruled, and the witness answered that he had made no such statement. In rebuttal, the district attorney testified