I concur in the judgment of affirmance as to defendant Trujillo, but I dissent from that portion of the majority opinion which holds that the evidence is sufficient to support the judgment against defendant Woodmansee.
In my opinion there was insufficient corroboration of Foakes ’ testimony to connect defendant Woodmansee with the crime, and that the judgment as to this defendant should be reversed. The only evidence of that character consists of the presence at the scene of the crime of a hammer upon which appears in stamped letters the initials E. W. (the same as those of Woodmansee) ; that Woodmansee and defendant Trujillo were seen together before and after the crime and had jointly committed a previous burglary; that a screw driver found at the scene of the crime was similar to one used in the previous burglary and the telegram sent by Woodmansee to his mother when he was arrested asked her to retain counsel and contact “Joe” meaning Joe Trujillo.
Even conceding that there was sufficient evidence at the trial (which I do not), there was a total absence of evidence to support the indictment against Woodmansee. The sole evidence concerning his connection with the crime is (1), the presence of the hammer at the scene of the crime with letters stamped thereon which corresponded to his initials, and (2), his presence and maintenance of silence at a conversation between Foakes and Trujillo in which the latter told Foakes he and Woodmansee would probably do a “job” the next night. It needs no discussion to demonstrate the total inadequacy of the *117first item of evidence. There was no evidence that the hammer belonged to Woodmansee, or that he had ever had it in his possession. Certainly the mere presence at the scene of a crime of an article with letters stamped on it that correspond to some person’s initials completely fails to connect him with the crime. The second item of evidence was hearsay and therefore not sufficient under section 919 of the Penal Code. The theory of its admissibility in this case is most commonly applied where the pertinent feature is the reaction of a person to accusatory statements made to him. (See, People v. Simmons, 28 Cal.2d 699 [172 P.2d 18].) Conceding that such exception to the hearsay rule is not confined to the “accusatory statements” situation, its basic philosophy is that “silence gives consent,” and the fundamental premises necessary for its application are that the one whose conduct is concerned must have heard the statement and it must have been made under circumstances which required some comment on his part, such as a denial if it were not true. This evidence was clearly inadmissible under settled rules which have been ably stated as follows: First, “. . . it is usually said that the proponent of the evidence must show, not merely that the party was present when the remark was made (and ‘presence’ of course implies ‘proximity within a distance sufficient to permit hearing’), but also that the party actually heard and understood what was said. But this seems too strict; the presence of a party may be assumed to indicate that he heard and understood.” (Wigmore on Evidence, (3d ed.), § 1072.) Second: “The general principle of Relevancy (ante, § 29) tells us that the inference of assent may safely be made only when no other explanation is equally consistent with silence; and there is always another possible explanation-—namely, ignorance, or dissent—unless the circumstances are such that a dissent would in ordinary experience have been expressed if the communication had not been correct. This much has always been conceded judicially when the question has been presented.” (Wigmore on Evidence (3d ed.), § 1071.) And a third rule which is clearly applicable here, has been stated thus: “So, too, if the party had plainly no motive for responding, his silence permits no inference; and this is often the case where the statement is addressed to another person, and not to the party himself. Much more is the silence without significance when a deterrent motive, such as fear, was operating upon the party.” (Wigmore on Evidence (3d ed.), § 1072.) Applying these rules in the instant *118case it is obvious that the silence of Woodmansee did not constitute an adoption of Trujillo’s statement that a “job” was going to be done by them the following night. There was no evidence before the grand jury of any previous relationship or acquaintance between Trujillo and Woodmansee. The conversation between Foakes and Trujillo took place in a pool room where there obviously would be noise. Foakes was talking to and with Trujillo. He was not talking to Woodmansee. As far as appears Woodmansee was merely a stranger who happened to be in the pool room. There is no showing that he was in such proximity to the conversation that he could hear what was said. There were other persons in the pool room. The only reference by Trujillo was to a “creamery job.” There is nothing to show what was meant by a “job,” and he said no more than that Woodmansee and he would “probably go on the job together.” It does not appear that Woodmansee could have heard the conversation. He did not participate in the conversation. He was a stranger to it. It did not call for a denial on his part. Trujillo simply made a vague suggestion that Woodmansee would go on the job with him. What kind of a job was not mentioned.
The foregoing evidence being eliminated there is nothing left but the hammer. That is no evidence at all. It was not identified as the property of Woodmansee.
■ Here Woodmansee’s motion to set aside the indictment on the ground that it had no evidentiary support was denied. That was an interlocutory order before judgment. Such interlocutory orders are reviewable on appeal from the judgment of conviction. It is said: “Upon appeal taken by the defendant, the appellate court may, without exception having been taken in the trial court, review any question of law involved in any ruling, order, instruction, or thing whatsoever said or done at the trial or prior to or after judgment, which thing was said or done after objection made in and considered by the lower court, and which affected the substantial rights of the defendant.” (Pen. Code, § 1259.) [Emphasisadded.] (See, also, Pen. Code, § 1237; 8 Cal.Jur. 560.)
Since it has been held that the court has no jurisdiction to try a case where there is no evidence to support the indictment (Greenberg v. Superior Court, 19 Cal.2d 319 [121 P.2d 713]), the only possible conclusion is that the conviction of Woodmansee cannot be sustained. The case of People v. McCalla, 63 Cal.App. 783 [220 P. 436], which holds that it is not preju*119dicial error to deny a motion to quash an information where there was no preliminary hearing, should be disapproved. As the court lacked jurisdiction under the Greenberg case to proceed with the trial on the indictment against Woodmansee, the judgment against him must be reversed.
Schauer, J., concurred.
Appellant Woodmansee’s petition for a rehearing was denied July 8, 1948. Carter, J., and Schauer, J., voted for-a rehearing.