People v. Miller

DOOLING, J.

Defendant Miller appeals from judgments of conviction of four connected offenses, burglary, robbery, assault with a deadly weapon and conspiracy to commit robbery. He was jointly charged with John Frieholtz, Vernon Geske and Bobert Mario Flores. Frieholtz pleaded guilty to the charges and testified for the People at the trial of the other three.

The evidence showed that the four defendants agreed to rob the till in the candy counter of the Alexandria Theater in San Francisco. Appellant Miller had a .45 caliber automatic pistol which he gave unloaded to Geske and Flores for use in the robbery. He had the use of an automobile belonging to a Mrs. Upshaw which the four used to get to and from the theater. In the early morning of November 21, 1953, Miller drove the other three to the theater. The other three entered a side door while Miller waited outside in the car. Two janitors, Beynolds and McGibbony, were working in the theater. Flores and Geske seized Beynolds and struck him over the head with the gun. Frieholtz assaulted McGibbony, who was using a vacuum cleaner, struck him three times with a metal part of the cleaner and finally kicked him in the head. Frieholtz then went to the candy counter, took $110 from the till and the three fled to the car in which Miller was waiting.

Appellant argues that the evidence is insufficient to support his conviction because it rests solely on the uncorroborated testimony of his accomplice. “ The test of corroboration of an accomplice ... is whether the evidence other than such testimony by reasonable inference connects the defendant with the crime or whether it satisfies the jury that the accomplice is telling the truth ... It must ‘tend to connect the defendant with the offense,’ but ‘so long as corroborating evidence creates more than a suspicion of guilt, it is sufficient

[308]

even though it “be slight and when standing by itself” entitled to but little consideration.’ ”

(People

v.

Califro,

120 Cal.App.2d 504, 513-514 [261 P.2d 332].) Here the evidence shows that appellant had the use of Mrs. Upshaw’s automobile and a photograph of this automobile was identified as the one used in the robbery; Geske and Flores both had notations of Miller’s telephone number on their persons when arrested; the gun used in the robbery was .45 caliber and bullets of that caliber were found in appellant’s room; and appellant admitted being with the other three at a time when Frieholtz testified they were planning the robbery. The corroboration, while slight, is sufficient.