Hart v. Barney & Co., 7 Fed. Rep. 553. If Palmer and Rey, on reselling the property, had sued the St. Clairs for the difference between the agreed price and what the property brought on the resale, we see no defense the latter could have made. Moreover, Palmer and Rey were bound to resell the property if they repossessed themselves of it. They could not have kept it as an owner; and not only so, but they were bound to resell for the benefit of the St. Clairs. The provision is, that if they retake they shall sell "to the best advantage, rendering to said borrower all surplus, if any, after paying the price agreed upon, and the expenses of removal and sale." This is not a feature of an executory contract of sale. It is the chief characteristic of a mortgage, and is the very sum and substance of proceedings for foreclosure. In a controversy between debtor and creditor, as to whether a transaction was a mortgage or a sale, such a stipulation would be conclusive that it was a mortgage. Why should it have a different import in this case?

We think, therefore, that the intention was to vest the substantial ownership in the St. Clairs, and that the sole object of the seller was to secure payment of the price; and this intention appears from the provisions of the contract itself. Such being the case, the statement that the property "remains the property of Palmer and Rey," etc., is inconsistent with the nature of the transaction, as shown by the contract itself, and is a mere disguise for the purpose of evading the requirements of the law as to mortgages of personal property. To sustain the position of respondent would be, in effect, to add to the chapter on mortgages a provision that in every case where personal property is sold the seller may take a mortgage thereon for the price, and that, too, without the affidavit and recording which are required in the cases where such mortgages are allowed.

This conclusion is not in contravention of the cases cited by respondent. For in none of them, except, perhaps, a case from an inferior court of New York (21 Barb. 581), did the provision above referred to exist. On the other hand, it is in accordance with the decision of the supreme court of the United States in Heryford v. Davis, 102 U. S. 235, which was not in reference to any local law. That court maintains to its fullest extent the rule as to conditional sales which prevails in this state: Harkness v. Russell, 118 Id. 663. But it

held that the features above adverted to took the case before it

out of the general rule.

For these reasons, we advise that the judgment and order be reversed, and the cause remanded for a new trial.

FOOTE, C., and BELCHER, C. C., concurred.

The COURT. For the reasons given in the foregoing opinion, the judgment and order are reversed, and cause remanded for a new trial.

Hearing in bank denied.

CONDITIONAL SALE, WHEN ACCOMPANIED BY DELIVERY OF POSSESSION of the property to the vendee, is well calculated to enable him either to make a sale of the property, or to obtain credit upon his apparent ownership of it, and thereby to entrap innocent purchasers and encumbrancers. On this account such sales are not looked upon with favor, and, in some of the states, they will not be sustained when brought in conflict with the interests of bona fide purchasers and encumbrancers, nor even as against judgment creditors who have levied upon the property as that of the vendee: Murch v. Wright, 46 Ill. 487; 95 Am. Dec. 455; Schweitzer v. Tracy, 76 Ill. 345; Stadtfield v. Huntsman, 92 Pa. St. 53; 37 Am. Rep. 661; Brunswich v. Hoover, 95 Pa. St. 508; 40 Am. Rep. 674; Vaughn v. Hopson, 10 Bush, 337.

But the very decided preponderance of the authorities is to the contrary, and maintains that, in these cases, as well as in others, one who purchases property or obtains a lien thereon, must ascertain for himself, as best he can, what. is the title of the party with whom he deals, and that in no event can his title be any better than that of his vendor: Sanders v. Keber, 28 Ohio St. 636; Bailey v. Harris, 8 Iowa, 331; 74 Am. Dec. 312; Moseley v. Shattuck, 43. Iowa, 543; Miller v. Steen, 30 Cal. 402; 89 Am. Dec. 124, and note; Morgan v. Kidder, 55 Vt. 370; Ketchum v. Brennan, 53 Miss. 596; Mount v. Harris, 1 Smedes & M. 185; 40 Am. Dec. 89; Haak v. Linderman, 64 Pa. St. 499; 3. Am. Rep. 612; Zuchtmann v. Roberts, 109 Mass. 53; 13 Am. Rep. 663; Cole v. Berry, 42 N. J. L. 308; 36 Am. Rep. 511; Lewis v. McCabe, 49 Conn. 140; 44 Am. Dec. 217; Aultman v. Mallory, 5 Neb. 178; 25 Am. Dec. 478; Sumner v. Woods, 67 Ala. 139; 42 Am. Rep. 104; Loomis v. Bragg, 50 Conn. 228; 47 Am. Rep. 638; Singer M. Co. v. Cole, 4 Lea, 459; 40 Am. Rep. 20; Freeman on Executions, sec. 124.

QUESTION WHETHER TRANSACTION IS MORTGAGE OR CONDITIONAL SALE. -The question still remains, however, whether a particular transaction is really a conditional sale, or whether the parties have put it in the form of such a sale for the purpose of concealing its real nature, and of obtaining the advantages of a conditional sale when their real transaction is of an entirely different character. Thus, in many of the states, there are provisions with respect to the mortgage of chattels, under which such mortgages are required to be executed with certain formalities, and, generally, to be recorded in some public office of the county; and in some of the states the class of personal property which may be the subject of a valid chattel mortgage is very limited. In order to evade the provisions of the statutes regarding chattel mortgages, there are many instances in which the transaction is put in the form, or called by the name, of a conditional sale. Recently the courts have been inclined to scrutinize these transactions more closely, and

to refuse to be bound by the name and form given them by the parties, if satisfied from the whole transaction that it was not a conditional sale.

With respect to the construction of contracts claimed to be conditional sales, the supreme court of the United States has very wisely said: "The answer to this question is not to be found in any name which the parties may give to the instrument, and not alone in any particular provision it contains, disconnected from others, but in the ruling intention of the parties, gathered from the language they have used. It is the legal effect of the whole which is to be sought. The form of the instrument is of little account": Heryford v. Davis, 102 U. S. 243.

The contract here in question was between two corporations, one of which was a builder of cars, and the other the owner and operator of a railway. It recited that the former had constructed certain cars to be used on the railway of the latter for hire, and that the former loaned the latter the said cars for hire on such railway for the period of four months, and not elsewhere; that the railway company had executed to the manufacturing company three certain notes, which were to be collected at maturity, and their proceeds held as security for the return of the cars when demanded, and that the railway company had the privilege of purchasing the cars at any time on paying the price fixed by the contract; that until such payment it should have no right, title, or interest in the cars, except to use them, and no power to dispose of, mortgage, or pledge them; and that the cars were to be delivered to the manufacturing company when demanded, in default of the pay. ment of said sum, with interest; that, on default in the payment of any of said notes, the manufacturing company might take possession of all of said cars, and retain all payments made on any of such notes, and would sell said cars, and return to the railway company any surplus remaining out of the net proceeds of the sale over and above the amount due on the unpaid notes; and, finally, that, on the payment of all of the notes, the manufacturing company would convey the cars to the railway company. This contract was construed not to be a conditional sale, but an attempt to obtain or reserve a lien in a form forbidden by the laws of the state; and the property was held to be subject to execution against the railway company.

The grounds of this decision were, that no price of the hire is mentioned or alluded to; that the manufacturing company took notes for the full price of the cars, and exacted security for their payment, and would therefore realize the price of the cars before the four months had elapsed; that no part of the money was to be returned to the railway company in any event, and in the event of the cars being taken from the railway company and sold, it was entitled to such portion of the proceeds of the sale as remained after paying the demands of the manufacturing company. "In view of these provisions," said the court, "we can come to no other conclusion than that it was the intention of the parties, manifested by the agreement, the ownership of the cars should pass at once to the railway company, in consideration of their becoming debtors for the price. Notwithstanding the efforts to cover up the real nature of the contract, its substance was an hypothecation of the cars to secure a debt due to the vendors for the price of the same. The railway company was not accorded an option to buy or not. They were bound to pay the price, either by paying the notes or surrendering the property to be sold in order to make payment. This was in no sense a conditional sale. This giving the property as a security for the payment of the debt is the very essence of a mortgage, which has no existence in the case of a conditional sale."

[IN BANK.]

PEOPLE V. KRAKER.

172 CALIFORNIA, 459.]

TERM "ACCOMPLICE" INCLUDES ALL PERSONS concerned in the commission of an offense, irrespective of the grade of their guilt.

UNCORROBORATED EVIDENCE OF THIEF will not justify the conviction of

one indicted for receiving stolen goods, knowing them to have been stolen.

WHETHER WITNESS IS ACCOMPLICE is a question of fact for the jury

PROSECUTION for receiving stolen goods, knowing them to have been stolen. The defendant was convicted, and his motion for a new trial denied.

C. Ben Darvin and Crittenden Thornton, for the appellant.

George A. Johnson, attorney-general, for the respondents.

By Court, PATERSON, J. Defendant was convicted of the crime of receiving stolen goods, knowing them to have been stolen.

At the trial, one H. G. Matthewson, who was charged in the information with the stealing of the goods, was a witness against the defendant,-evidently the principal witness.

At the conclusion of the testimony and argument, the defendant asked the court to instruct the jury substantially in the language of section 1111 of the Penal Code, which reads as follows:

"A conviction cannot be had on the testimony of an accomplice, unless he is corroborated by other evidence, which in itself, and without the aid of the testimony of the accomplice, tends 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."

The court refused to give the instruction asked, and in the charge to the jury, referring to the claim of defendant's counsel that Matthewson was an accomplice, said: "I charge you in plain terms that if you believe the testimony of Horace G. Matthewson, and from that testimony you are satisfied to a moral certainty that the defendant did receive the property mentioned in the information from him, and that at the time of the receipt thereof by the defendant he knew and was informed that it was stolen property, and he so received it for

AM. ST. REP., VOL. I.-5

his own gain, or to prevent the owner from again possessing it, then you are authorized to convict the defendant on the testimony of said Matthewson."

Subsequently, on motion for new trial, the learned judge had some doubt as to the correctness of his instruction, but deeming it best to have the question settled, denied the motion, giving the defendant the benefit of a certificate of good cause.

We think the instruction given by the court was erroneous. The proposition has never been directly passed upon in this state, but in People v. Levison, 16 Cal. 99, 76 Am. Dec. 505, the court, in commenting upon certain rulings, said:

"It also leaves the inference that the unsupported testimony of the thief is sufficient to establish the defendant's guilt."

An accomplice includes all persons who have been concerned in the commission of an offense, and the grade of guilt of the witness is not important: Abbott's Law Dict.; Cross v. People,

47 Ill. 152.

In England, where there is no statutory provision against a conviction on the uncorroborated testimony of an accomplice, the judges always instruct the jury that the uncorroborated testimony of the thief in cases of this kind is not sufficient: Regina v. Robinson, 4 Fost. & F. 43; Regina v. Pratt, 4 Id. 315.

In that portion of the charge quoted above, the court took from the jury the question whether, as a matter of fact, Matthewson was an accomplice, considering, it seems, only the abstract proposition of law as to whether the mere fact that the witness was the thief made him an accomplice of the one who received the goods. But the question as to whether the witness was an accomplice in the commission of the offense is a question of fact for the jury: State v. Schlagel, 19 Iowa, 169.

In Texas, under a statute like section 1111, supra, the court held that if the witness was an accomplice in any material fact, the jury should have been instructed as to the value of his evidence without corroboration: Miller v. State, 4 Tex. App. 251. And in Massachusetts it is held that "the court should instruct the jury as to what constitutes an accomplice, and leave it for them to determine whether the witness was in fact an accomplice": Commonwealth v. Elliot, 110 Mass. 106; Com monwealth v. Ford, 111 Id. 394.

Judgment and order reversed, and cause remanded for new

trial.