Hayes

The defendant Hayes, together with one Moe, was charged with the crime of burglary. A trial of the two jointly was commenced, but during its progress Moe, who had previously made a written confession of his culpability, pleaded guilty. The trial then proceeded against Hayes alone and he was convicted. He appeals from the judgment and from an order denying his motion for a new trial.

The charge against appellant was based upon the taking, from a bungalow which was part of a private sanitarium for incompetent and weak-minded persons, of a phonograph and a radio set. The bungalow was occupied by one Whiting, an inmate of the sanitarium, and one of the questions argued in the briefs is whether the articles which were taken were his property. Moe, up to the time of the burglary, had been a nurse at the sanitarium, and it is settled beyond dispute that he effected an entrance into the bungalow, that he took therefrom the articles mentioned, that appellant awaited him outside the house and near at hand while he did so, and that the two together then carried the “stuff” to an automobile in front of the sanitarium grounds, in which they, accompanied by a young girl, had driven to the…