PEOPLE v. HENDERSON

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District Court of Appeal, Second District, Division 2, California.

PEOPLE v. HENDERSON.

Cr. 4305.

Decided: April 05, 1949

Saul J. Bernard, of Los Angeles, for appellant. Fred N. Howser, Atty. Gen., and Dan Kaufman, Deputy Atty. Gen., for respondent.

Defendant was charged with felonies in four counts: (1) Attempted robbery of Noel Johnson while defendant was armed with a deadly weapon, a .410 sawed-off shotgun; (2) assault with intent to commit murder on Barton Williams; (3) assault with intent to commit murder on Richard Berry; (4) assault with a deadly weapon on William Lewis Roberts. He was charged also with a prior conviction of receiving stolen property, a felony.

Defendant admitted the prior conviction, pleaded not guilty to each of the four charges, and waived a trial by jury. The court found him guilty as charged in each count. His motion for a new trial was denied. He appeals from the judgment and from the order denying a new trial.

The sole question presented by defendant on the appeal from his conviction under counts 1, 2 and 3 is that the evidence is insufficient to sustain the judgment in that the testimony of William Lewis Roberts, defendant's accomplice, was not corroborated as required by section 1111 1 of the Penal Code. The ground advanced for reversal of his conviction under count 4 is that since Roberts, the person upon whom the assault with a deadly weapon is alleged to have been committed, was jointly engaged with defendant in the attempted robbery, defendant cannot be guilty of the assault on Roberts by reason of section 31 of the Penal Code.

About 1:30 A.M., on December 29, 1947, defendant and William Lewis Roberts attempted to rob a cafe in Altadena; defendant was armed with a shotgun and Roberts had a toy pistol; they entered the cafe and ordered the employees and customers to face the bar and put their hands up; both men wore flesh-colored masks with eyeholes cut in them; the shotgun was unintentionally discharged by defendant, resulting in the wounding of Williams, Berry and Roberts. Defendant and Roberts immediately departed.

Roberts testified as follows: He is defendant's cousin; they were together almost all of the day preceding the crime and had discussed the robbery of the cafe several weeks previously; defendant had seen shotguns in Roberts' room where he resided at his sister's home and inquired whether they could obtain one; they agreed that they would get a “little .410” from Roberts' sister; when they went to her home she refused to sell the gun to Roberts but agreed to sell it to defendant; when they left the house defendant was carrying the gun and it was placed in the trunk of his car; about 11:00 o'clock in the evening they visited the home of defendant's father; the barrel of the shotgun was sawed off and the gun was returned to the trunk of the car; the two men then went to defendant's home where the latter's wife produced some stockings which they put on over their heads and faces and she cut eyeholes in them; as they were leaving defendant's house the latter gave Roberts a black toy pistol resembling a .38; the shotgun was transferred to another car and they went to the cafe; when the unexpected discharge of the shotgun terminated their attempt at robbery they returned to defendant's home where Roberts “passed out”; subsequently defendant's father and uncle took Roberts to Colton, about 50 miles distant from their respective homes, where he received medical attention; Roberts' right eye was blinded by the wound which he received.

Lester Henderson, called as a witness by the prosecution, testified that he was defendant's uncle but refused, on the ground that his answers might incriminate him, to respond to any questions concerning the happenings during the evening and early morning of the night of the robbery, as well as questions as to whether he had heard of any attempt to rob the cafe or of any plans for the commission of the crime.

Inez Bustos testified that she was defendant's cousin and Roberts' sister; they came to her home on December 28; she refused to sell the .410 gun to her brother but did sell it to defendant; her last recollection of the gun was when defendant and Roberts went into the bedroom for it; defendant picked it up and had it in his hands when they walked through the house.

Johnson, Williams and Berry, named as the victims in counts 1, 2 and 3, each testified that the men who attempted to rob the cafe wore flesh-colored masks with holes cut in them for their eyes. One witness described the weapon as a sawed-off shotgun, and another, who testified as to his familiarity with guns, said the sound made when the gun was discharged was like that of a .410 shotgun. Witnesses also testified that one of the men had a toy pistol in his hand at the time of the attempted robbery.

Defendant did not testify. Neither his wife nor his father, who was designated by Roberts as the “finger man,” was called by defendant as a witness in his behalf. No explanation was made as to what became of the gun after the attempted robbery.

The testimony of Roberts was sufficiently corroborated by the other witnesses mentioned with reference to defendant's purchase of the gun, the character of the masks worn by him and Roberts, their presence in the cafe, their possession of a sawed-off shotgun and a toy pistol, and the identification of the sound made by the gun as being a .410 shotgun. Evidence is sufficient to corroborate that of an accomplice, even though circumstantial and slight, if it tends to connect the accused with the commission of the offense, and the corroborating evidence need not go so far as to establish by itself, and without the aid of the testimony of the accomplice, that the defendant committed the offense charged. People v. Negra, 208 Cal. 64, 69–70, 280 P. 354; People v. Trujillo, 32 Cal.2d 105, 111, 194 P.2d 681; People v. Tinnin, 136 Cal.App. 301, 305, 28 P.2d 951. Possession of a weapon similar to the one used in the commission of a robbery is substantial evidence connecting the defendant with the crime. People v. Elliott, 104 Cal.App. 107, 110, 285 P. 401; People v. Stoerkel, 87 Cal.App. 336, 339, 262 P. 825. Corroboration of Roberts' testimony that defendant's wife produced stockings and prepared them to be used as masks, that the barrel of the shotgun was sawed off at the home of defendant's father, and that the latter and defendant's uncle took Roberts to Colton for medical aid, is found in the failure of defendant to call his wife and father as witnesses and in the action of the uncle in assigning self-incrimination as the reason for his refusal to testify.

The evidence of witnesses to the existence and character of the gun was sufficient. Code Civ.Proc. sec. 1954; People v. Anderson, 87 Cal.App.2d 857, 197 P.2d 839. It was not necessary for the prosecution to produce the gun and offer it in evidence.

Defendant contends that his conviction under count 4, assault with a deadly weapon on Roberts, his accomplice, cannot be sustained since at the time of the assault they were jointly engaged as principals in the commission of a felony and the act of defendant in perpetrating the assault was therefore the act of Roberts insofar as criminal liability is concerned, citing section 31 2 of the Penal Code.

Defendant's argument seems to be that since (1) Roberts aided and abetted defendant and was a principal in the commission of the attempted robbery, and (2) Roberts was wounded by defendant while they were engaged in the joint enterprise, Roberts, by reason of the provisions of section 31, was a principal in the assault upon himself, and therefore defendant is not guilty of the charge. Following such argument to its ultimate, if Roberts had been killed defendant could not have been prosecuted for murder because Roberts' participation as principal in his own killing would have amounted to suicide. The law does not recognize such an absurdity.

Although Roberts and defendant engaged jointly in the commission of the crime charged in count 1, neither of them planned or intended an assault upon the other. Section 31 of the Penal Code is applicable only to acts against third persons and not to criminal offenses committed by one of the participants in a crime against his partner or associate. People v. Cabaltero, 31 Cal.App.2d 52, 57–58, 87 P.2d 364. Since Roberts was not liable for prosecution for the assault committed upon himself he was not an accomplice, Penal Code, sec. 1111, supra, and his evidence concerning count 4 did not require corroboration. People v. Suter, 43 Cal.App.2d 444, 456, 111 P.2d 23.

The judgment and the order denying defendant's motion for a new trial are affirmed.

FOOTNOTES

FN1 Sec. 1111: “A conviction cannot be had upon the testimony of an accomplice unless it 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. An accomplice is hereby defined as one who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given.”.  FN1 Sec. 1111: “A conviction cannot be had upon the testimony of an accomplice unless it 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. An accomplice is hereby defined as one who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given.”

FN2 Sec. 31: “All persons concerned in the commission of a crime, whether it be felony or misdemeanor, and whether they directly commit the act constituting the offense, or aid and abet in its commission, or, not being present, have advised and encouraged its commission, and all persons counseling, advising, or encouraging children under the age of fourteen years, lunatics or idiots, to commit any crime, or who, by fraud, contrivance, or force, occasion the drunkenness of another for the purpose of causing him to commit any crime, or who, by threats, menaces, command, or coercion, compel another to commit any crime, are principals in any crime so committed.”.  FN2 Sec. 31: “All persons concerned in the commission of a crime, whether it be felony or misdemeanor, and whether they directly commit the act constituting the offense, or aid and abet in its commission, or, not being present, have advised and encouraged its commission, and all persons counseling, advising, or encouraging children under the age of fourteen years, lunatics or idiots, to commit any crime, or who, by fraud, contrivance, or force, occasion the drunkenness of another for the purpose of causing him to commit any crime, or who, by threats, menaces, command, or coercion, compel another to commit any crime, are principals in any crime so committed.”

WILSON, Justice.

MOORE, P.J., and McCOMB, J., concur.

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