People v. Wilburn

CARTER, J.

Defendants Wilburn and Atkinson were charged in four counts: Count 1, murder of Walter James and counts 2, 3 and 4, armed robbery; it was charged also that they were armed with revolvers during the commission of the crimes. They pleaded not guilty to all counts but later pleaded guilty to the armed robbery (counts 2, 3 and 4) and

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admitted being armed with revolvers when the robberies were committed. The killing of James occurred in the commission of the robberies. Defendants were found guilty of first degree murder and the jury fixed the penalty at life imprisonment. Defendant Atkinson only appeals.

Between 9:30 and 10 p. m. on June 4, 1956, defendants approached a liquor store which they planned to rob and which was being operated by Willie James, a clerk. Wilburn who entered the store and purchased a soft drink observed three people in the store—Willie, his brother Walter, who was helping Willie, and Thomas Wright, a patron. Wilburn left the store and suggested to Atkinson that the time was not right since there were three people in the store but told Atkinson that none of the three had a gun and Atkinson suggested they proceed as planned. Defendants entered the store, loaded revolvers in their hands, Wilburn with a .32 caliber Smith and Wesson and Atkinson with a .38 caliber Colt. Atkinson told the persons in the store to keep their hands still, go to the back of the store and keep their backs toward the front of the store or they would get a bullet. The three went to the rear of the store to the storage room and were forced to bend over liquor cases there and valuables were removed from their persons. According to Atkinson’s instructions, Willie and Wright then lay face down on the floor and were warned that if they moved they would get a bullet in the back. Wilburn took Walter to the cash register toward the front of the store, and had him open the register and put the money in a paper bag. About that time Thomas Watson, a retired police officer, armed with a loaded .45 caliber Colt automatic on his person, entered the store to make a purchase. He saw Wilburn with a gun and Walter behind the counter at the cash register and Atkinson standing in the customers’ aisle opposite the register. Watson was told by Atkinson to go to the back of the store and he took a couple of steps in that direction, having sized up the situation as a hold-up. Atkinson glanced toward the front, of the store and when he turned back toward Watson the latter had drawn his automatic which he fired, hitting Atkinson, spinning him around. Watson stepped over to a soft drink case and fired again at Atkinson. In the meantime Atkinson was firing his revolver. Watson moved to another area and fired two shots at Wilburn. A few seconds later defendants fled from the store, and Walter stumbled toward Watson and fell. Defendants were later apprehended. Five shots were fired by