Truax

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