that the Blunkalls attempted to avoid being seen by them. The daughter said that Henry Blunkall, upon observing Eckert coming to the Scott home, went into the hou e, whereupon Mrs. Scott asked him, "What is the matter?" to which Henry replied that he did not desire to be seen by anyone, "especially Mr. Eckert, as he would know he was up there doing something, and he did not want him to see him when he was out doing that kind of business." The young woman also testified that a social dance in the district schoolhouse was scheduled for the evening of the 26th of August, and that Oliver Blunkall asked her about the dance and whether she thought there would be a large attendance thereat, and that she replied, expressing the opinion that the affair would be largely attended. "He then said he guessed they wouldn't interfere with the business of taking the cattle." Both the mother and daughter testified that the three defendants left the Scott place on horseback late on the night of the twenty-sixth day of August, and that Scott did not return to his home after that night until the following Sunday, which was the twentyninth day of August. Both Mrs. Scott and her daughter detailed other circumstances connected with the presence of the Blunkalls at the Scott home, which tended to show that those defendants had gone there for the purpose of carrying out the scheme of the three men to take the cattle of Purcell or "the cattle pasturing on the plains"; but we have already presented in substance enough of the testimony of those witnesses to demonstrate that the testimony of Scott was fully corroborated. Indeed, we make bold to say that if there was no other testimony in the case tending to connect the Blunkalls and Scott with the commission of the crime charged but the testimony of Mrs. Scott and that of her daughter, as it is briefly stated above, a reviewing court would go beyond its legitimate function in setting aside a verdict predicated thereon. Section 1111 of the Penal Code provides, in part: "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.” If there be some independent evidence fairly tending to connect the defendant with the commission of the crime, then the testimony of the accomplice is corroborated within the intent of the above section. (People v. Garnett, 29 Cal. 622; People v. Clough, 73 Cal. 348, [15 Pac. 5]; People v. Miller, 65 Iowa, 60, [21 N. W. 181]; People v. Mayhew, 150 N. Y. 346, [44 N. E. 971].) In People v. McLean, 84 Cal. 480, 482, [24 Pac. 32], it is said: "The corroborating evidence is sufficient if it, of itself, tends to connect the defendant with the commission of the offense, although it is slight, and entitled, when standing by itself, to but little consideration. (See People v. Melvane, 39 Cal. 616.)" It is true, as is contended, that the "corroborating testimony" in this case consists of circumstantial evidence, but the corroboration required by the section named may properly be made by circumstantial as well as by direct evidence. The circumstances detailed by the corroborating witnesses here are of the most incriminatory character, and, as above stated, sufficient of themselves to fasten guilt upon the accused. They therefore went beyond the requirement of the rule relative to the corroboration of the testimony of an accomplice. The appellants complain of the following instruction, and declare that it involves an erroneous statement of the rule: "While corroborating evidence must create more than a mere suspicion, it is not required that it be of itself sufficient to convict, nor need it extend to every fact and detail covered by the statements of the accomplice. It is sufficient if, standing alone, it tends to connect the defendants with the crime. It is sufficient if it tends to connect the defendants with the commission of the offense, though of itself, standing alone, it would be entitled to but little weight." The objection to said instruction may best be stated in counsel's own language as follows: "The words 'it would be entitled to but little weight' is an erroneous instruction. The court should have given the jury the positive instruction that such testimony is not sufficient upon which to convict." We confess that we are not entirely clear regarding the precise point which counsel thus attempts to urge as the ground of his objection to the instruction. If he means to contend that the court should have stated it as a general proposition to the jury that evidence offered for the purpose of corroborating the testimony of an accomplice can never be sufficient to justify a conviction, the obvious reply is that there is no legal ground or reason upon which such a proposition may be supported. That evidence corroborative of the testimony of an accomplice might be sufficient to justify a conviction, there can be no possible doubt, and no better illustration of this proposition can be found than in the present case. The instruction clearly and correctly states the rule as to the quantum of proof essential to the corroboration of an accomplice, and plainly told the jury, in effect, that, while corroborative evidence need not, and might not, when taken alone, be sufficient to warrant the conviction of a person charged with crime, it would meet the test as corroborative proof if it merely tended to connect the defendant with the commission of the offense. This involved an accurate statement of the rule as the legislature has written it. The court refused to adopt and read to the jury a number of instructions proposed by the defendants, and it is insisted that in its action in so doing it erred to the serious detriment of the defendants' rights at the trial. One or two only of the assignments under this head merit special attention. The following is one of the refused instructions preferred by the accused: "The jury are instructed that a defendant in any criminal case is a competent witness on his own behalf, and the fact that he is a defendant is not of itself sufficient to impeach or discredit his testimony, though the jury are entitled to take into consideration his interest in the event of the prosecution in determining his credibility." The instruction was wholly inapplicable to the case, inasmuch as neither of the defendants on trial was called to testify. Moreover, the instruction, if pertinent, would be subject to the objection that it singles out the testimony of a particular witness, and instructions which purport to state the tests or rules by which the credibility of witnesses or the weight of evidence is to be determined should be made applicable, not to a single witness or his testimony only, but to all the witnesses or all the testimony. The defendants requested an instruction declaring that the witness W. A. Scott, one of the defendants, was an accomplice, and the court denied the request. We perceive in the court's refusal to so instruct the jury no prejudicial error. It is true that it was established beyond controversy that Scott was an accomplice, if the crime charged was committed as he declared it to have been; still, the court clearly explained to the jury who an accomplice in crime is under our law, and with equal clearness stated that the Blunkalls could not legally be convicted upon the uncorroborated testimony of an accomplice. We have now considered all the objections to the action of the trial court in disallowing instructions proposed by the accused which we think deserve special notice. It is sufficient to say of the other instructions so proposed and rejected which were pertinent to the issues of the case that they involved the statement of principles which the court, in clear language, announced to the jury in its charge. And, in this connection, it is to be said that the charge of the court contained a full and correct statement of every rule or principle of law applicable to the issues or vital facts developed by the proofs. The appellants appear to have been accorded a fair and impartial trial, the verdict seems to be supported by ample evidence, and the record is free from prejudicial error. The judgment and the order are therefore affirmed. [Crim. No. 507. Second Appellate District.-November 3, 1916.] THE PEOPLE, Respondent, v. BRUCE WING, Appellant. CRIMINAL LAW-BURGLARY-EVIDENCE-CONFESSION.-In a prosecution for the crime of burglary, it is not error to admit in evidence the alleged confession of the defendant, where the corpus delicti is established and the confession shown to have been free and voluntary. ID. DEFENSE OF ALIBI-TEMPTATION TO RESORT TO-INSTRUCTION.-In such prosecution, it is not an invasion of the province of the jury to give an instruction which contained a statement which suggested to them that the defense of an alibi was occasionally fabricated and that temptation to resort to it might be great in cases of importance. 31 Cal. App.-50 APPEAL from a judgment of the Superior Court of Los Angeles County, and from an order denying a new trial. Frank R. Willis, Judge. The facts are stated in the opinion of the court. C. B. Conlin, for Appellant. U. S. Webb, Attorney-General, and Robert M. Clarke, Deputy Attorney-General, for Respondent. JAMES, J.-Appellant was convicted of the crime of burglary of the first degree, and appeals from a judgment of imprisonment and an order denying his motion for a new trial. The evidence showed that during the month of October, 1915, the appellant visited the salesroom of an automobile dealer in the city of Los Angeles and remained about the place for an hour or so. He made inquiries regarding the purchase of a machine, stating that a physician named McLaughlin desired to buy a car and that if it was purchased that he (appellant) would be employed to drive it. He particularly looked over an "Enger" automobile which was standing on the floor, that machine being painted a cream color; he inquired as to whether it was in running order and ready to be used, and something about the method of operating it. He left the place late in the afternoon and the salesroom was closed up that evening as usual; it being Saturday of the week. On the following day one of the salesmen returned to the place and found that the creamcolored machine at which appellant had been looking was gone. A tire had also been taken from another machine standing in the place. About six months later officers who had been working on the case found an automobile in a closed garage in the lower part of the city which answered the description on the "Enger" automobile. The machine, however, had been painted black, and even the hub caps, which had borne the name "Enger" cut in the metal, had been covered with some substance so as to obliterate the lettering, and the caps, which had been nickel, were also painted black like the rest of the machine. The number had been removed from the automobile and generally it had been |