People v. Robbins

The district court of appeal of the first appellate district filed an opinion in this case, but this court ordered the transfer of the action, to the end that we might further consider the two questions: (1) Was the complaining witness an accomplice? And (2) If an accomplice, was he sufficiently corroborated?

The opinion of the learned district court of appeal was as follows:

“By the Court.—The defendant in this case was informed against and convicted of the infamous crime against nature, and thereafter sentenced to five years in the state prison The appeal is from the judgment and from an order denying a new trial.

“The only evidence adduced upon the entire case as to the actual commission of the offense is to be found in the testimony of the complaining witness, a boy of about the age of sixteen years. His testimony reduced to narrative form is as follows: ‘I live at 1638 Baker Street and go to school at the Emerson Primary School. On September 15, 1913, I was living there with my father, mother, grandmother, uncle, and the landlady of the house, Mrs. Nute, who is the housekeeper. I know and for five years past have known the defendant, Samuel P. Robbins. On September 15, 1913, he came to my house at about 3 o’clock in the afternoon. I heard from him before he came to the house. When I came home to lunch at about 12 o’clock he phoned and asked me if he could come up and see me at the house and I said, “Yes,” and he said he would be up about 3 o’clock. I saw him at 3 o’clock in the hall of my residence. I said, “How do you do?” He replied, saying, “How do you do?” We went into the dining-room and played dominoes for twenty-five minutes. Then we went down into the yard and played a game of tennis ball for twenty-five minutes. After that we went upstairs to the bathroom,, because he wanted to wash his hands.

We entered the bathroom together, as he had asked me to go-there with him. He locked the bathroom door. It locks with a bolt and he put a handkerchief over the lock. He pulled down the shade on the window, not all the way but only about halfway down. The glass -on the window is lumpy glass, that you can’t see through-—-that is, it is frosted. Robbins let the water run in the faucet in the wash-basin.’

“Further details of the testimony of this witness as to what occurred need not be- narrated here. It will suffice to say that his testimony was to the effect that the crime alleged was perpetrated upon him in the bathroom; and that while in the consummation of the act charged a noise was heard at the bathroom door, and the defendant thereupon said he must stop because he was afraid of being caught. Further testifying, the witness said in substance that after he heard the noise at the door Robbins, the defendant, washed his hands with the flowing water in the basin and rearranged his clothes, unlocked the door, and after saying good-by left the house.

“Mrs. Nute, the landlady and housekeeper above referred to, was called as a witness for the prosecution, her testimony, reduced to narrative form, being as follows: ‘I live with the father and mother of the complaining witness. I have lived there two years and four months as a housekeeper. The boy is sixteen years old. I was living with them on September 15, 1913. I do not know the defendant Robbins personally, but have seen him at the house of the father and mother of the boy. I saw him there on September 15, 1913. He was coming through the hall going to the dining-room. He remained in the dining-room twenty or twenty-five minutes with the boy; then he went down in the back yard with the boy and played ball with him about twenty or twenty-five minutes. The defendant Robbins then came up and went into the bathroom with the boy. They both entered and the door was closed. I was at my bedroom door and I saw Robbins and the boy enter the bathroom. I heard the door closed and bolt thrown back. I heard the bolt—-a patent bolt—click. I went to my room, which looks out at the bathroom window in the light-well right off of the hall, the same as the bathroom. The bathroom window overlooks the light-well, and so does mine. The bathroom window glass is frosted and- cannot be looked through. I went into my room and looked through the lace curtains. It was kind of dark in my -room.

I looked over at the bathroom window. It was up about eight inches. It was open. I saw Bobbins go up to the window and look over toward my room and pull the window down. I saw Bobbins hauling on the window. My window is about eight feet from the bathroom window. I saw the window-shade drawn down. I do not know who did it. Then I went out of my room to the bathroom door and heard the water running. It had been running quite a while before I got there. I was going to stand at the door and listen, but my hand accidentally knocked against it and made a noise. I heard Mr. Bobbins talking to Sidney but could not hear what he said. I stepped back to the kitchen, stayed there about five minutes, and saw Sidney and Mr. Bobbins come out. I did not see Bobbins after that. I went into my room and closed the door. There is no key-hole in the bathroom, simply a bolt. If there had been I would have peeked through it like any other woman. ’

‘‘ The primary point presented upon this appeal is that the evidence shows that the complaining witness was an accomplice in the crime charged, and that the defendant was convicted upon the uncorroborated testimony of an accomplice.

“It is conceded, as indeed it must be, that the complaining witness was an accomplice; and that the verdict and judgment cannot be sustained unless there is in the record evidence sufficient to corroborate the story told by the complaining witness. Section 1111 of the Penal Code explicitly declares that a conviction cannot be had on the testimony of an accomplice unless he is corroborated by other evidence which 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. It will thus be seen that the statute imperatively makes corroboration of the testimony of an accomplice an essential prerequisite to the conviction of a defendant where the crime charged rests primarily and solely upon the testimony of an accomplice; and it is apparent, therefore, that the court has no control over the subject except to apply the statute. The court has no discretion in the matter, but is bound to apply the statute indiscriminately to all cases wherever an accomplice appears as a witness, and the state’s case depends solely upon his uncorroborated testimony.

“We are of the opinion that the circumstances attending and preceding the entrance of the boy and the defendant into the bathroom, as narrated by the witness Mrs. Ñute, are not sufficient singly or all together to constitute that corroboration which in the eyes of the law will support a verdict founded primarily upon the testimony of an accomplice. The rule in this behalf is well and tersely stated in 12 Cye., at page 456, where it is said: ‘It is necessary that the evidence corroborating an accomplice shall connect or tend to connect the defendant with the commission of the crime. Corroborative evidence is insufficient where it merely casts a grave suspicion upon the accused. It must not only show the commission of the offense and the circumstances thereof, but must also implicate the accused in it. . . . But where the circumstances when proved, taken separately or collectively, are consistent with the innocence of the accused, there is no corroboration, and a verdict of conviction thereon will be set aside. ’

“In the present case the entrance of the defendant and the boy into the bathroom after having played a game of tennis was neither unnatural nor suspicious; and the fact that the bathroom door was closed and locked, and the window pulled down and the shade partly drawn, would not ordinarily be considered as preparation for an evil purpose. The turning on of the water in the bathroom was but natural and to be expected under the circumstances; and the fact that the conversation of the boy and the defendant could not be heard outside the bathroom door is of no particular significance. Necessarily a conversation carried on behind a closed door is more or less muffled. None of these facts and circumstances is inconsistent with the innocence of the defendant. On the contrary, they are all consistent with an innocent purpose. People entering a bathroom for the usual and ordinary purposes of such a room as a matter of course lock the door and draw the blinds and use the water at hand. Surely, if all of these circumstances be consistent with an innocent purpose, it cannot be said that any of them tended to connect and implicate the defendant with the commission of the offense charged. The fact that the defendant had an opportunity to commit it is of no particular significance as far as corroboration is concerned. Of course, the opportunity of the defendant to commit the particular crime for

which he is on trial may always be shown in connection with other facts to establish his guilt; but we know of no rule which holds that mere opportunity to commit a crime is an incriminating corroborating circumstance. Following the rule that evidence offered for the purpose of corroborating an accomplice must tend to connect the accused with the offense charged, it has been held that there must be corroborating testimony by some witness other than the accomplice as to some act or fact which is an element of the offense charged. (Cooper v. State, 90 Ala. 641 , [ 8 South. 82 ].) Therefore, the fact that the witness, Mrs. Nute, either intentionally or inadvertently struck the door of the bathroom while she was endeavoring to hear the conversation of the boy and the defendant was a comparatively unimportant fact, which, in our opinion, had no tendency to connect the defendant with the commission of the offense. At its best, it did no more than confirm the boy’s testimony that he heard a noise at the door, but it does not tend to show that the defendant was engaged in a criminal act. The fact that the suspicion of this witness was aroused because she saw the defendant and the boy enter the bathroom is not, in our judgment, corroborative evidence in any sense of the term. The most that can be said in favor of the prosecution upon this phase of the case is that for some reason not explained or detailed the suspicions of the witness were aroused; but it is the rule, and the well-settled rule, in this state that the corroborative evidence required to convict the defendant in addition to that of the accomplice is not sufficient if it merely tends to raise a suspicion of the guilt of the accused. This is all that the circumstances of the present case did in the mind of the witness, Mrs. Ñute; and we are satisfied that those circumstances as narrated by her upon the witness-stand could do no more than raise a suspicion in the minds of the jury as to the guilt of the defendant. Mere suspicion, as has been shown, will not suffice as corroborative evidence; and where the evidence relied upon as corroborative of the accomplice is, as in the present ease, only such as to raise a suspicion of the guilt of the defendant, the verdict must be set aside.”

We are in accord with the foregoing discussion and with the conclusions reached.

The learned attorney-general insists that he did not “concede” in the hearing before the district court of appeal that

“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.” In the year 1911 the section was amended and its language is now as quoted below:

“A conviction cannot be had upon the testimony of an accomplice, unless he be corroborated by such other evidence as shall tend 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.” (Stats. 1911, p. 484.)

It is argued that this section, as amended, may be paraphrased as follows: “A conviction can now be had on the testimony of an accomplice if he is corroborated by other evidence, which not necessarily in itself, but with the aid of the testimony of an accomplice, tends to connect the defendant with the commission of the offense.” This is only another way of interpreting the section to mean that a conviction may be had upon the testimony of an accomplice if the prosecution can produce any corroboration of any of his statements, even if the acts described by him and so corroborated have no essential connection with any crime and may be as consistent with innocence as with guilt. It is not our duty to speculate with reference to the intention of the legislature in passing any given law, but if we should hazard a guess upon that subject, we should say that probably the language contained in the section in its earlier form but omitted from the later enactment was thought by the legislators to have a tendency to mislead jurors into the false belief that a complete case for the prosecution must be established without reference to the testimony of the accomplice. Whatever may have been the purpose in modifying the phraseology of the section, we cannot see that its meaning has been changed

The counsel for the state specifies nine reasons and an incidental matter which, it is asserted, amount to corroboration of the lad’s testimony. We quote them from one of the briefs as follows:

“(1) Defendant meeting the boy at the latter’s house;

“ (2) The preliminary games in the dining-room and back yard;

“ (3) Going into the bathroom with the boy;

“ (4) Then the closing of the door;

“ (5) Then the locking of the door;

“ (6) Then the additional precaution of Bobbins pulling the window down;

“ (7) The further act of pulling down the curtain although the glass in the window was frosted;

“ (8) The noise at the door made by Mrs. Ñute as her hand accidentally struck the same while listening;

“(9) The parties emerging together, not immediately, but about five minutes after.

“Incidentally, and in addition to the above, the defendant testified he was fifty-six years of age, and Mrs. Nute testified that the boy was sixteen years old, so the disparity of the ages of the defendant and the boy made this quite an unusual friendship, and therefore is a circumstance to be considered. It would not be so unusual were they related. ’ ’

We have examined these alleged corroborations in detail and we cannot see how, singly or in combination, they tend

It follows that the judgment and order must be, and they are, reversed.

Sloss, J., Henshaw, J., and Lorigan, J., concurred.

I dissent. Apart from the question of the legal characteristics of an accomplice, which I do not find necessary to discuss, I am satisfied that the judgment of the lower court should be upheld upon two grounds—first, that under the evidence the jury could have found that the minor was not an accomplice, and, second, assuming that he was an accomplice, his testimony was sufficiently corroborated.

Under all the circumstances, the jury could well have found that the boy was not an accomplice upon any of the theories discussed, and, in my opinion, the judgment should be upheld on that ground alone.

The question whether he participated corruptly in the crime should be determined strictly upon the evidence in this case, and hence my views are not influenced by the facts in the case of Dong Pok Yip, supra. The minor in this case was only sixteen years of age. He did not attend school until he reached the age of eleven, notwithstanding that he lived with his parents and grandmother in apparently comfortable circumstances. The minor testified that he did not know, until Mrs. Nute, the housekeeper, informed him, that what appellant did was wrong. From the evidence the jury may have concluded that the minor did not possess the usual intelligence of one of his years, and that he was completely under the control of appellant, who was old enough to be his grandfather. In the eyes of the jury he probably appeared as a passive, undeveloped boy, subject to the will of the appellant, and they judged the case accordingly. Furthermore, in considering whether the boy consented it must be kept in mind that before the crime was committed appellant preliminarily performed another act upon the minor, which was probably intended to anticipate his resistance to the offense charged and at the same time stimulate appellant’s own abnormal desires.

But if the minor was an accomplice, his testimony was nevertheless sufficiently corroborated. I shall first consider the character of the corroborative testimony required. The amendment of section 1111 of the Penal Code (Stats. 1911, p. 484) repealed the clause therein—“which in itself, and without the aid of the testimony of the accomplice.’’ The adjudications touching this clause are to the effect that the corroborative evidence must be independent of the testimony of the accomplice. In People v. Compton, 123 Cal. 403 , 411, [ 56 Pac. 44 , 48], the rule is thus expressed: “It could tend to connect him with the crime by considering it with the testimony of the accomplice; yet, if it is necessary so to consider, it would not be legally sufficient. It is legally sufficient only

Now, as to the degree of proof required of the corroborative evidence: In People v. Barker, 114 Cal. 617 , [ 46 Pac. 601 ], it was said: “The strength or credibility of the corroborating evidence is for the jury. It ‘need not be strong; it is sufficient if it tends to connect the defendant with the commission of the offense; though if it stood alone it would be entitled to little weight.’ (People v. McLean, 84 Cal. 480 , [ 24 Pac. 32 ].) Nor need it extend to every fact and detail covered by the statements of the accomplice. (People v. Kunz, 73 Cal. 313 , [ 14 Pac. 836 ]; People v. Cloonan, 50 Cal. 449 .)”

But although more is required by way of corroboration than to raise a mere suspicion, yet the corroborating evidence is sufficient if it tends to connect the defendant with the commission of the offense, although it is slight and entitled, when standing by itself, to but little consideration. (People v. Clough, 73 Cal. 348 , 351, [ 15 Pac. 5 ]; People v. Melvane, 39 Cal. 614 ; Kent v. State, 64 Ark. 247 , 253, [ 41 S. W. 849 ]; State v. Hicks, 6 S. D. 325 , [ 60 N. W. 66 ].) It is not necessary to corroborate the testimony of the accomplice by direct evidence. It is sufficient if the connection of the accused with the alleged crime may be inferred from the corroborative evidence in the case.

These instructions were given to the jury: “No one can be convicted upon the uncorroborative testimony of an accomplice. ... If the proof in this case does not satisfy your minds to a moral certainty and beyond all reasonable doubt of the guilt of this defendant, it" is your duty to find a verdict of not guilty. It is also the law, and I give it to you in this case in behalf of the defendant, that no one can be convicted upon the uncorroborated testimony of an accomplice. No matter how strong a suspicion of the guilt of the

The testimony of the accomplice is sufficient to prove the actual commission of the offense. (People v. Leavens, 12 Cal. App. 178 , [ 106 Pac. 1103 ]; People v. Thompson, 16 Cal. App. 748 , [ 117 Pac. 1033 ]; People v. Barnnovich, 16 Cal. App. 427 , [ 117 Pac. 572 ].) Can it be maintained that, as matter of law, there was not sufficient corroborating evidence within the meaning of the rule to connect appellant with the commission of the crime? The testimony of the minor and Mrs. Nute is fairly stated in the majority opinion, and it will not be necessary to refer to it at length.

Mrs. Nute saw appellant and the boy enter the bathroom together and close the door, and then heard the click of the bolt in the door. She saw the appellant glance over toward where she was concealed behind a lace curtain in her own room and lower the window of the bathroom, and observed by the shadow on the frosted glass that the shade was drawn, but, of course, she could not determine by whom. The boy testified that appellant drew the shade, and, from Mrs. Nute’s statements, it is a fair inference, in support of his testimony, that appellant, who lowered the window, also drew the shade. While the fact that Mrs. Nute entertained suspicions of appellant’s purpose is not in any sense proper evidence on the question, yet her vigilance throughout may be considered in testing the accuracy of her observations. From her position in her. own room she heard the water running quite awhile before she started for the bathroom door to listen. She heard the voice of appellant in a low key. It doubtless seemed significant to the jury that the pair were in the bathroom together such a length of time before she made the noise at the door; that they still remained for five minutes; and that appellant should leave the house as soon as he came out of the bathroom.

The inquiry naturally arises from these facts, Why did appellant and the boy go to the bathroom together; why bolt the door, glance over toward where Mrs. Nute was concealed behind the lace curtains, lower the window and draw the shade? It is incomprehensible that all these precautions would have been taken if the sole object was “to wash their hands.’.’ The record is silent on the point whether the bath

If the jury believed the testimony of Mrs. Nute, it could have found that the minor was corroborated on “a material point,” which the- trial court instructed the jury was required. But there was further evidence which may have influenced the jury and led them to reject the testimony of appellant. Does it not seem strange that after making an appointment with the boy at noon for 3 o’clock, the domino and tennis games should be of such short duration? It was proper for the jury to consider the conduct of appellant when he was arrested and questioned in the presence of the boy, and thereupon made the incomplete answer: “I don’t see why that boy should say that, I did not do.” Nor when he said to the officer, on the way to the prison, “I do not know how you feel about it. . . . You are entitled to your opinion and I am entitled to mine. It is his word against my word..” His replies were not indicative of one falsely accused, and hardly represented the attitude of an innocent man charged with an unspeakable crime.

His general reputation for the traits involved was put in issue. (Code Civ. Proc., sec. 2053; Pen. Code, sec. 1102.) Two of the five witnesses called on his behalf were asked, on cross-examination, if they had ever heard that he was accused of similar acts upon two other boys of the age of sixteen years, which questions were answered in the negative. In rebuttal, the prosecution called the two boys, both of whom gave testimony that his general reputation for the traits involved was very bad. The officer in the case gave similar testimony.

Prom a study of the entire evidentiary record it is clear that the conduct of appellant throughout was of an equivocal import, which the jury could have resolved either in favor of his guilt or his innocence. It has found against his innocence, and, if the evidence under any theory of fact is susceptible of such a finding, it should not be disturbed on appeal.