People v. Braun

By an information filed against them by the district attorney of the county of Los Angeles, George Braun, Harry Groves, Ann Groves and John Roble were jointly accused in count I of the crime of murder and in count II of the offense of attempted murder. The defendants entered separate pleas of not guilty and went to trial thereon before a jury. During the progress of the trial defendant John Roble withdrew his plea of not guilty as to the charge of murder set forth in count I of the information and pleaded guilty thereto, at which time as to him count II was dismissed,

The facts disclosed by the record as necessary for a consideration of this case are substantially as follows: On the early morning of March 20, 1938, the deceased, Presley B. Stewart, was the owner of and operating a cafe known as “The Bee Hive” in Los Angeles County. Shortly after 1 o’clock the defendants Roble and Groves, together with one Waller, the latter of whom was not apprehended, entered the cafe and attempted to rob Stewart at the point of guns. At that time appellant Braun, and defendant Mrs. Groves were present in the cafe, having entered some time previous, but neither of the last-named two actively participated in the attempted hold-up. Resistance being offered to the robbers, a fracas ensued, during which several shots were fired, resulting in the killing of the proprietor, Stewart, and the wounding of one Dan Preston, named as the victim in count II of the information. The three gunmen obtained some forty dollars from the cash register and fled the premises. Shortly thereafter on that same morning they, together with appellant Braun and defendant Mrs. Groves, met at the Groves apartment and departed for Arizona. While in Arizona, the party decided to disband, pursuant to which decision Waller and defendants Groves and Roble journeyed eastward, while appellant Braun and defendant Mrs. Groves returned to California via San Diego, in which latter city they surrendered themselves to officers of the law; while defendants Harry Groves and Roble were apprehended in Kansas City and returned to Los Angeles County for trial.

Appellant first challenges the sufficiency of the evidence to sustain the conviction on the ground that the same is totally lacking in any corroboration of the testimony of the

The accomplice also testified that he first met appellant in the early part of March, 1938, and that appellant was a frequent visitor at the Groves apartment. The accomplice also testified that he had stolen a few cars before he had met appellant; that he stole the Pontiac car on March 16th, and also a Buick about that date; and that on Thursday or Friday, March 17th or 18th, three days before the robbery of the cafe, he, the witness, went to Alhambra and robbed two places en route, but did not involve appellant therein.

Appellant Braun took the witness stand in his own behalf at the trial; admitted he had previously been convicted of a felony in January, 1931, for which he served a term in an eastern penitentiary, having been discharged therefrom September 27, 1937; that he met one of the robbers, Leo Waller, in 1936, while both were confined in the penitentiary. He further testified that he arrived in Los Angeles during November, 1937, and lived with Waller for a few days during the interim until February 18, 1938; that he knew Mr. and Mrs. Groves, two of his codefendants; that he first met the codefendant Roble March 15, 1938. With reference to the night of March 19th and the early morning of the 20th, when the hold-up in question occurred, appellant testified that he was with Waller, codefendants Mr. and Mrs. Groves and Boble around 3 or 4 o’clock in the afternoon of the 19th; that subsequently an argument ensued between the defendant Groves and Ms wife, following which, appellant testified, he drove away with Mr. Groves, Waller and Roble, letting Groves and Roble out of the automobile, after which he drove around with Waller, finally arriving at the home of a Mrs. Martinsen, where all of the defendants and Waller were present. That Mr. and Mrs. Groves again engaged in an argument, which culminated in Mrs. Groves saying she was going to leave her husband, and appellant drove her to her apartment to get her belongings. Thereafter, appellant testified, he and Mrs. Groves drove around, finally arriving at the Bee Hive Cafe about midnight. Appellant further testified that he had frequented the Bee Hive Cafe since November, 1937, and was fairly well known there. He then related how a commotion started at the cafe and he observed Waller and another man struggling with each other, while defendant

There is no direct evidence connecting appellant with the crimes charged in the information, for the reason that he did not actually participate in the robbery or the shooting in connection therewith. He could be convicted, therefore, only on the ground that though inactive during the commission of the offenses, he had previously advised and encouraged the hold-up in the perpetration of which one man was killed and another wounded. The only direct evidence that appellant knew of the contemplated robbery or that he had previously advised and encouraged it is supplied by the witness Roble, and he eoncededly being an accomplice, his testimony must be corroborated. “A conviction cannot be had upon the testimony of an accomplice unless it be corroborated by

It will thus be seen that the statute imperatively makes corroboration of the testimony of the accomplice an essential prerequisite to the conviction of the 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. In People v. Morton, 139 Cal. 719 , 724 [ 73 Pac. 609 ], our Supreme Court quoted with approval the following language found in Weldon v. State, 10 Tex. App. 400 : “ . . . eliminate from the case the evidence of the accomplice, and then examine the evidence of the other witness or witnesses with the view to ascertain if there be any inculpatory evidence—evidence tending to connect the defendant with the offense. If there is, the accomplice is corroborated; if there is no inculpatory evidence, there is no corroboration, although the accomplice may be corroborated in regard to any number of facts sworn to by him. ’ ’ In the same case of People v. Morton, supra, our Supreme Court voices its approval of the rule as stated in Simms v. State, 8 Tex. App. 230 : “The evidence must tend directly and immediately to connect the defendant with the commission of the offense. ’ ’

In New York, under a code provision similar to our own (Code Crim. Proc., sec. 399), it was said in People v. Ryland, 28 Hun, 568 , 570, “The corroboration, however strong in all other respects, must point to the connection of the defendant with the commission of the crime to be of any avail.”

That more is required by way of corroboration than mere suspicion is firmly established in the law of this state. (People v. Kempley, 205 Cal. 441 , 456 [ 271 Pac. 478 ], and cases therein cited; People v. Davis, 210 Cal. 540 [ 293 Pac. 32 ].) In People v. McLean, 84 Cal. 480 [ 24 Pac. 32 ], we find the following:

“But although more is required by way of corroboration than to raise a mere suspicion (see People v. Thompson, 50 Cal. 480 ), yet the corroborating evidence is sufficient if it, of itself, 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.”

Having in mind the foregoing legal principles, we now turn to the record to discern in what respects, if at all, the testimony of the accomplice Roble was sufficiently corroborated. Through the testimony of other witnesses, including that of appellant himself, numerous facts were proved. There was evidence that Braun was present in the Bee Hive Cafe when the hold-up and homicide took place, by reason whereof he had an opportunity to participate in the crimes; but proof of mere opportunity raises no more than a suspicion of guilt, and that is insufficient. (People v. Robbins, supra; People v. Morton, supra ; People v. Koening, 99 Cal. 574 [ 34 Pac. 238 ].) It was also established that appellant had associated with the actual perpetrators of the crime, but such conduct again gives rise only to a suspicion of guilt that he advised, encouraged and participated in the crimes. (People v. Long, 7 Cal. App. 27 [ 93 Pac. 387 ] ; People v. Koening, supra ; People v. Fagan, 98 Cal. 230 [ 33 Pac. 60 ].) It is admitted by appellant that following the commission of the crimes he drove to the apartment of his codefendant Groves, and a few hours later accompanied the actors in the hold-up to Arizona, but in this connection it should be remembered that Mrs. Groves was with appellant and that when he drove to the apartment of her husband he was taking her home. It is contended that by accompanying the codefendants to Arizona appellant evidenced a consciousness of guilt, but such an inference is more or less negatived by the testimony as to his drunken condition, coupled with the fact that he immediately returned from Arizona and surrendered to the police. However, we think that neither singly nor collectively do these circumstances lend any weight to the conclusion that appel

The accomplice in the case before us acknowledged from the witness stand his- own infamy. He admitted committing a series of robberies and the larceny of two automobiles; he also exhibited resentment against appellant for the reason, as stated by him, that appellant had advised him to commit crime and had failed to send him money in accordance with appellant’s alleged promise. Probably also the fact that after he surrendered to the police appellant made a statement to them of the happenings in the Bee Hive Cafe on the night of the crime influenced the accomplice in his hostile attitude toward appellant. We do not refer to these matters for the purpose of arriving at a conclusion that the accomplice’s story ought not to be believed by the jury, but for the purpose of emphasizing the duty imposed upon us to scrutinize other evidence in the record which the prosecution claims measures up to that standard of corroborative evidence demanded by our

Illegitimate and unconstitutional practices get their first footing by silent approaches and slight deviations from established legal modes of procedure. In a strong dissenting opinion delivered by Mr. Justice Sutherland of the Supreme Court of the United States, in Associated Press v. National Labor Relations Board, 301 U. S. 103 [ 57 Sup. Ct. 650 , 81 L. Ed. 953 ], we are counseled to “withstand all beginnings of encroachment. For the saddest epitaph which can be carved in memory of a vanished liberty is that it was lost because its possessors failed to stretch forth a saving hand while yet there was time.” The acquittal of a guilty person is truly a miscarriage of justice, but the conviction of an innocent person through relaxation of those fundamental legal principles such as the one with which we are here concerned, would be a tragedy. It is the duty of the courts to be watchful for the constitutional and individual rights of the citizen and against any stealthy encroachments thereon.

That on February 14,1938, the defendants Roble and Harry Groves, at the point of guns, held up and robbed a cafe located between the cities of Pomona and Ontario. There was evidence of the presence of a third but unidentified man on this occasion. Appellant, however, was not identified as being present. That on March 16th defendants Waller and Roble stole an automobile from a parking station. That on January 31, 1938, appellant, Harry Groves and Roble, armed with deadly weapons, held up and robbed employees of the United Independent Dairies. That on March 16th Harry Groves, Roble and Waller robbed Mr. and Mrs. Harry Salman in their home.

It is now definitely settled as the law of this state that upon the trial of an accused for the commission of a particular crime, the prosecution may show as a part of its ease that such crime was committed in furtherance of a conspiracy to commit a series of like or other criminal acts (People v. Schmidt, 33 Cal. App. 426 [ 165 Pac. 555 ]; People v. Arnold, 199 Cal. 471 [ 250 Pac. 168 ]); and such evidence is not rendered inadmissible because it shows that the accused committed other and distinct crimes in furtherance of the common' object of the conspiracy. (People v. Zimmerman, 3 Cal. App. 84 [ 84 Pac. 446 ] ; People v. Anderson, 59 Cal. App. 408 [ 211 Pac. 254 ].) However, in the instant case, there is no testimony whatever, other than the insufficiently corroborated testimony of the accomplice, that appellant participated in or advised or encouraged the commission of any

That this line of testimony was prejudicial to appellant cannot be questioned and is evidenced by the fact that Mrs. Ann Groves, one of the defendants whose participation in the Bee Hive Cafe robbery was akin to that of appellant, was acquitted, while the latter was convicted. Moreover, and in connection with this type of evidence, the court if a retrial is had should be careful to instruct the jury that the defendant is on trial solely for the offenses charged in the information, to wit, murder and attempted murder, alleged to have been committed on March 21, 1938, as set forth in the information, and is not on trial for conspiracy, nor for any offenses other than the ones charged in the information; and that as to evidence concerning other crimes happening before the 21st of March, such evidence should be considered by the jury for the limited purpose of determining whether a conspiracy existed between the defendants to commit a series of robberies or like criminal offenses. (People v. Sampsell, 104 Cal. App. 431 , 440 [ 286 Pac. 434 ].) No such instructions were given, and as to this appellant such failure was prejudicial error, both from the standpoint of the lack of evidence to show his participation in any except one of the other offenses, and as to the other offense in connection with which appellant was identified; for in the absence of the admonition just suggested, the jury was free to erroneously consider such evidence as corroborative of the testimony of the accomplice and as proof of defendant’s guilt of the offenses for which he was on trial.

No other questions presented demand our consideration.

For the foregoing reasons, the judgment is reversed and the cause remanded for a new trial.

York, P. J., and Doran, J., concurred.