People v. Malone

Defendant above named was found guilty of the crime of grand theft. His motion for a new trial was denied, and he has appealed from the judgment and from the order denying his motion for a new trial.

The principal and in fact the only contention of appellant is that there is no evidence to connect him with the offense charged, except the testimony of Ray Hill and Dorothy Andrada, both of whom appellant asserts are accomplices. Before discussing this contention, we shall give a brief summary of the evidence as shown by the record.

Approximately 600 feet of rigid electrical conduit pipe was taken without the owner’s permission from a construction project at the Red Bluff High School about 10 p.m. the evening of May 5, 1958. The night watchman saw a man who had a bundle of conduit in his hand throw it into the rear of a pickup truck and then enter the cab of the truck where another person was seated and drive away. The night watchman was unable to identify the thief. About 11 p.m. Ray Hill saw the defendant in the living room of the home of Hill’s grandfather. The defendant told Ray Hill that he had some pipe to deliver to his father’s home. Ray Hill then directed the defendant to his father’s home, and subsequently, with Ray Hill’s assistance, the pipe was unloaded. After the pipe had been unloaded Ray Hill was told, “Gee this stuff is hot, will you cover it up?” The next morning Ray Hill

Appellant did not testify at the trial and called no witnesses in his defense.

Appellant contends that the evidence is insufficient to sustain his conviction of grand theft because both Ray Hill and Dorothy Andrada are accomplices and there is no other evidence to connect him with the crime. It is conceded that Dorothy Andrada was an accomplice; and that if it must be held as a matter of law that Ray Hill also was an accomplice, the evidence is insufficient to sustain the judgment.

Appellant argues that since the testimony of one accomplice cannot be corroborated by the testimony of another accomplice (People v. Clapp, 24 Cal.2d 835 [ 151 P.2d 237 ]), the conviction is repugnant to California Penal Code, section 1111, which states: “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.”

A thief and the receiver of the stolen property generally are not accomplices of each other. (People v. Lima, 25 Cal.2d 573 [ 154 P.2d 698 ] ; People v. Raven, 44 Cal.2d 523 [ 282 P.2d 866 ] ; People v. Conrad, 125 Cal.App.2d 184 [ 270 P.2d 31 ].) However, there is an exception to the foregoing rule. When the thief and receiver conspire together to steal with a prearranged plan for the one who actually steals to deliver the property to the other, they are accomplices of each other. (People v. Lima, supra; People v. Raven, supra; People v. Hamilton, 143 Cal.App.2d 305 [ 299 P.2d 716 ].)

There is no evidence in the record from which it may be inferred that Ray Hill conspired with the defendant to steal the pipe. The most that could be inferred is that Hill