Opinion
Department One
Appeal from a judgment of the Superior Court of San Bernardino County and from an order denying a new trial. John L. Campbell, Judge.
COUNSEL:
The testimony of Shaw, the accomplice, is entirely uncorroborated. No inference of the guilt of the defendant can be drawn from the fact that he was at the saloon on the evening of the commission of the crime beyond the fact that it gave him the opportunity to advise its commission. (People v. Keoning , 99 Cal. 576; People v. Ames , 39 Cal. 403; People v. Smith , 98 Cal. 218; People v. Thompson , 50 Cal. 480.) The corroborating testimony must connect the defendant with the crime charged. It is not sufficient that it corroborates the accomplice as to the fact that the crime was committed. (People v. Eckert , 16 Cal. 110; Pen. Code, sec. 1111.) The court erred in its instruction to the jury in regard to the degree of corroboration required, as, if it does not invade the province of the jury as to the weight of evidence, it is certainly calculated to mislead the jury as to the amount of evidence sufficient to convict. (People v. Thompson , 50 Cal. 480; People v. Curlee , 53 Cal. 607; People v. Smith, supra .)
Paris & Allison, for Appellant.
W. F. Fitzgerald, Attorney General, and Charles H. Jackson, Deputy Attorney General, for Respondent.
It is for the jury in a criminal case to determine whether evidence introduced upon a given point amounts to proof of the fact sought to be proved. (People v. Dick , 32 Cal. 214; 34 Cal. 663; People v. Ybarra , 17 Cal. 171; People v. Ah Fung , 17 Cal. 377; 1 Chitty's Criminal Law, 528; People v. Mayes , 66 Cal. 597; 56 Am. Rep. 126.) Testimony of a witness is corroborated when it corresponds with that of some other witness, or with some facts otherwise known or established. (People v. Hong Tong , 85 Cal. 171.) The rule prohibiting a conviction upon the uncorroborated testimony of an accomplice does not require that every fact testified to by the accomplice shall be specifically corroborated in order to warrant a conviction. (People v. Kunz , 73 Cal. 313.) The testimony necessary to corroborate that of an accomplice need not be strong; it is sufficient if it of itself tends to connect the defendant with the commission of the offense, though if it stood alone it would be entitled to but little weight. (People v. McLean , 84 Cal. 480.) The evidence which is necessary, under section 1111 of the Penal Code, to corroborate the testimony of an accomplice, in order to secure a conviction, need not be evidence tending to establish the precise facts testified to by the accomplice. (People v. Cloonan , 50 Cal. 449; People v. Garnett , 29 Cal. 622.) The instruction as to the degree of corroboration required states the law on the subject. (Pen. Code, sec. 1111; People v. McLean, supra ; People v. Thompson , 50 Cal. 481; People v. Cloonan, supra ; Noland v. State, 19 Ohio, 131; Wharton's American Criminal Law, 366; 1 Phillips on Evidence, 37-39; Queen v. Wilkes, 32 Eng. Com. L. 507; Queen v. Farler, 34 Eng. Com. L. 314, 315; Queen v. Dyke, 34 Eng. Com. L. 381.)
JUDGES: Van Fleet, J. Harrison, J., and Garoutte, J., concurred.
OPINION
VAN FLEET, Judge
Defendant was convicted of robbery and appeals from the judgment and an order denying him a new trial.
1. It was objected that there was no evidence tending to connect defendant with the commission of the crime, other than the uncorroborated statements of an accomplice. We regard the evidence as quite sufficient to satisfy the statute as to the degree of corroboration required. The testimony of Leary, the prosecuting witness, while not positive on the point, nevertheless tended directly to identify defendant as one of his assailants; while that of several other witnesses placed defendant in the company of his accomplice, in the near vicinity of the scene of the robbery, at a very few minutes prior to the commission of the offense. This was evidence tending, independently of that of the accomplice, to connect defendant with the commission of the offense; and that is all that is required. 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 but little weight." (People v. McLean , 84 Cal. 480.) Nor need it extend to every fact and detail covered by the statements of the accomplice. [46 P. 602] (People v. Kunz , 73 Cal. 313; People v. Cloonan , 50 Cal. 449.)
2. The instruction as to the degree of corroboration required, which is objected to, is in full accord with the principles above stated, and correctly states the law.
There is no error in the record, and the judgment and order are affirmed.