People v. Nielson

PLUMMER, J. The plaintiff was tried jointly with three of the defendants, to wit: Clifford Hutchinson, W. H. Ilutch[665]inson and Reuben Smick, upon an information charging the violation of section 593 of the Penal Code, in that, on or about the 7th day of April, 1937, in the county of Sutter, said defendants did then and there unlawfully, maliciously and feloniously take down, remove and transfer a line erected and maintained by the Pacific Gas and Electric Company, etc. All of the defendants were convicted, and from the judgment of conviction, Clifford Nielson appeals.

Upon this appeal it is urged that no evidence was introduced sufficient to justify the verdict of the jury, or to justify the jury in coming to the conclusion that the defendant had knowledge of, participated in, or aided or abetted in the commission of the offense charged in the information. This contention appears to be well taken. There is absolutely no testimony in the record, other than extra-judicial statements made by other defendants, that the appellant was present, or had anything to do with the commission of the alleged offense. These statements were not allowed to be admitted in evidence against the defendant, as they were not made in his presence and in which he did not participate, save and except the testimony of one of the defendants, Reuben Smick, whose testimony falls under the “Accomplice Rule” set forth in section 1111 of the Penal Code, to wit: “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.”

A number of witnesses were introduced, and our attention has been called to all of them by counsel for the People, but in no single instance did the testimony of any one of the witnesses for the prosecution, other than as stated hereafter, tend in anywise to connect the appellant with the commission of the offense. All of the witnesses testified that on the night of April 7, 1937, a number of men were in the neighborhood of where the wires belonging to the Pacific Gas and Electric Company had been cut down and rolled up in coils. None of the defendants, at the scene just referred to, were seen or identified by any of the officers. We need not detail the testimony of the officers, but a careful reading of the whole transcript shows that our summary is sufficient. Their testi[666]