I concur in the judgment affirming the conviction as to appellant Carl C. Coon, but I dissent from the judgment affirming the conviction of appellant Zeismer. As I view the record in this case, the evidence as to appellant Zeismer is extremely unsatisfactory as to either the issue of felonious intent or the value of the goods which came into Zeismer’s possession being more than $200. The evidence clearly shows that appellant Zeismer arrived at the fire about 4 o’clock Wednesday afternoon, in company with his superior officer, Kenneth Hubbard, a sergeant of police of the Santa Monica police department. The fire was burning at that time and Zeismer and Hubbard carried out some articles of personal property, placing the same in a police radio car, from which, as was heretofore detailed, they were later removed and placed in appellant Coon’s car, to be transported to the lifeguard station. Thus we see that the goods with which appellant Zeismer later became connected were transferred from the police ear into the custody and keeping of appellant Coon. Later on the same evening Sergeant Hubbard called appellant Zeismer on the telephone and directed him to go to appellant Coon’s house and pick up the articles which Zeismer and Hubbard had taken out of the fire earlier in the day. Appellant Zeismer was unacquainted with appellant Coon’s address, whereupon Sergeant Hubbard obtained the address and Zeismer proceeded to the home of appellant Coon, picked up the property as directed by his sergeant, and returned the property to Zeismer’s home, where Sergeant Hubbard later met appellant Zeismer and checked the items which were then in Zeismer’s garage, after which he directed Zeismer to take them to the detective bureau. Sergeant Hubbard testified that when he checked the articles at the home of appellant Zeismer he found there all the property taken by him and Zeismer and noted the same as accounted for. In fact, it appears from the record that when Sergeant Hubbard went to Zeismer’s home and asked the latter if all the property taken by Zeismer and Hubbard was there present, Zeismer answered in the affirmative, but asked Sergeant *476Hubbard to check the same, which the latter did. It appears from the testimony that the detective bureau at Santa Monica was not open at night, and that the following day, Thanksgiving Day, Zeismer was not on duty in the police department, nor was he on duty the day following, on which latter day he came to Los Angeles to attend to some business. It is at once apparent that there was no attempt at secrecy on the part of appellant Zeismer. He was at all times aware that his superior officer, Sergeant Hubbard, knew that the goods in question were at Zeismer’s home. On Saturday, the first day after taking the goods upon which appellant Zeismer worked, he arrived at the police station with his automobile containing the articles in his possession and delivered the same to the office of Captain Lingo, where they remained until Monday, when they were delivered to the owners.
It cannot be gainsaid in the present case but what the original taking of the property by appellant Zeismer and his superior officer was lawful and done for the purpose of protecting the same from the fire. It was therefore incumbent upon the prosecution to show a subsequent appropriation or conversion of the property before appellant Zeismer could be convicted. This the prosecution, in my opinion, under the facts hereinabove outlined, failed to do. I am impressed with the fact that the evidence in this case is not even open to two equally reasonable conclusions, viz., one of guilt and one of innocence, but preponderates in favor of innocence, showing as it does a course of conduct not at all compatible with the ordinarily surreptitious activities of a thief. It is true, as stated in the main opinion, that it seemed to be generally known among members of the police and fire departments of the city of Santa Monica that a search was being made for the personal belongings of Mr. Parmenter and the two airplane hostesses, but in that connection it should be pointed out that appellant Zeismer was not on duty during the succeeding two days following the fire and he was apprised of the fact that his superior, Sergeant Hubbard, knew where the articles in question were located.
We come now to a consideration of the value of the articles which came into possession of appellant Zeismer, and which formed the basis of count two upon which appellant Zeismer was found guilty of grand theft. A search of the record by *477me for any testimony establishing the value of these articles proves fruitless. It is true that there is testimony in the record to the effect that all of the property lost by one of the airplane hostesses, Miss Weld, was reasonably worth $1,000, and there is evidence that the property belonging to Miss Kay which came into possession of appellant Zeismer was worth less than $50, but there is no testimony to show that the articles which came into possession of appellant Zeismer were worth $200 or any other sum in excess thereof.
The record is barren of any substantial evidence to show the existence of a conspiracy into which appellant Zeismer joined. The evidence falling far short of the quantum required in criminal cases to prove a felonious intent or appropriation on the part of the appellant Zeismer, or to establish that the value of the goods exceeded $50, the conviction as to him, in my judgment, should be set aside.
As to appellant Zeismer, in my opinion, the judgment and the order denying his motion for a new trial should be reversed and the cause remanded.
A petition for a rehearing of this cause was denied by the District Court of Appeal on January 19, 1940, as to appellant Coon, and granted as to appellant Zeismer.