Bishop v. United States

¶5*33BASTIAN, Circuit Judge.

¶6In essence, the appellant in this case attacks the rule in force in this jurisdiction that a person may be convicted on the uncorroborated testimony of an accomplice where the court instructs the jury that such testimony, though competent, should be received with caution and scrutinized with care.1 Appellant also urges that the evidence in this case was not sufficient to enable the jury to find appellant guilty beyond a reasonable doubt.

¶7Appellant and one Young were indicted for robbery of a restaurant at gun point, Young pleading guilty and appellant standing trial. Appellant was found guilty and sentenced. Young was identified by the victims. Testifying for the Government, Young admitted the robbery and implicated appellant and one Osborne, Assuming, arguendo, that there was no corroboration of the testimony of the accomplice, Young, as to the presence of the appellant and the latter’s participation in the crime, we nevertheless are of opinion that the conviction must stand.

¶8The case of McQuaid v. United States, 1952, 91 U.S.App.D.C. 229, 198 F.2d 987, is particularly applicable to the instant case. There the same (among other) contentions were made as in this case, namely, that the evidence was not sufficient to support a conviction, that the accomplice witness was unreliable, and that there was no corroboration of the testimony of the accomplice witness. Judge Fahy, speaking for this court, said, 91 U.S.App.D.C. at page 230, 198 F.2d at page 989:

“We are unable to hold, as we are urged to do, that the evidence was insufficient to enable the jury to find appellant guilty beyond a reasonable doubt. It is true a principal witness against him was a self-confessed participant who had pled guilty to stealing the goods which appellant was charged with having received unlawfully. But the trial court instructed the jury that while as a matter of law they could convict upon the uncorroborated testimony of an accomplice, such testimony, though competent for their consideration, should be received with caution and scrutinized with care. No error appears here. Egan v. United States, 1923, 52 App.D.C. 384, 287 F. 958. This witness was in some respects vague and indefinite, but in other and critical respects he was clear and positive.”

¶9The principal witness, Young, is severely attacked by appellant.2 But the jury had all the facts concerning her and, nevertheless, evidently believed her testimony. We cannot say they could not do so.

¶10Appellant contends not only that there was no corroboration of Young’s testimony but also that the testimony of the victims conflicted with her story. We do not think that such is the case. The witness, Nina Maddox, an employee at the robbed establishment, stated that after the robbery she went to the business establishment next door to call the police, that she noticed a blue car parked just beyond the next-door establishment, and that this car had at least one person in it, one at the driver’s wheel; that the weather that evening was “raining and cold” and she could not identify the driver; and that when she came out of the next-door establishment the car was gone. *34The witness, Wing, a partner in the robbed restaurant, testified that after the robbery he saw a man drive the car for Young.3

¶11Appellant also contends that the testimony is not convincing as to his participation in the robbery. The witness, Young, testified that on the evening of the robbery she, the appellant and Osborne left the house where the three of them resided, in a blue Ford. They rode to Bethesda, Maryland, drove to a little side street, where they parked, and Osborne left the car. Bishop, who was driving the car, was asked by Young where Osborne had gone; he stated that Osborne had gone to “rob a place.” Shortly thereafter Osborne came back, got into the car, and stated that he did not rob the place because there were too many people around. Young further testified that “[w]e were all talking about robbing some place.” [Emphasis supplied.] Thereafter, the witness testified that the parties got to the vicinity of Sixth and H Streets, N. W., and it was decided that Young would rob the restaurant in question and they would wait in the car, and that this decision was reached as a result of conversation between Young and the other occupants of the car. To argue, under these circumstances, that no agreement on appellant’s part to participate in the robbery was shown is naive indeed, to say the least.

¶12We think the evidence in the instant case was sufficient for the jury to find appellant guilty beyond a reasonable doubt, and see no reason to depart from the established rule as to testimony of accomplices. Nor do we think there is any reason, as requested by appellant, to modify the rule.

¶13Affirmed.

¶17BAZELON,

¶18Circuit Judge (dissenting).

¶19The case against appellant consisted of the testimony of three witnesses. Mr. Wing testified that Mrs. Young entered his restaurant alone on the night of December 13, 1953, held him up at gunpoint, took his money, left the restaurant, entered an automobile driven by a man, and rode off. A waitress at the restaurant testified to the same effect. Neither of these witnesses, however, identified appellant as the man in the automobile. Mrs. Young’s testimony agreed with theirs, except In one respect. She said there were two men in the automobile, one of them being her lover, Vic Osborne, and the other the appellant. Appellant is thus linked to the crime by Mrs. Young’s testimony alone.

¶20The testimony of an accomplice, if true, is as probative of the facts of a crime as any other evidence would be. If we look askance at accomplice testimony, it is because we recognize that it is less likely than other evidence to be true. For that reason juries are instructed to receive such testimony with caution and scrutinize it with care. It does not follow, however, that the giving of such an instruction is in all cases adequate to discharge the duty of the court to assure that justice be done.

¶21It would be difficult to conceive of a more unreliable witness than Mrs. Young.1 But how much credence to place *35in her is for the jury to decide. The most significant parts of her testimony, moreover, could well be disbelieved in the absence of further explanation.2 But that too is the jury’s province. If appellant complained only that Mrs. Young is unreliable and her testimony incredible, I would not be disposed to interfere with the jury’s conclusion.

¶22Appellant’s conviction, however, suffers from the following additional infirmities:

¶23(1) Mrs. Young’s testimony that appellant, as well as Osborne, was in the car with her is not only completely uncorroborated, but conflicts with the testimony of the disinterested witnesses that they saw only one man in the car.

¶24(2) This discrepancy takes on added significance in the light of the fact that, in her earlier story to the police, Mrs. Young had agreed with the other witnesses that there was only one man in the automobile. She had then named appellant as the one man who was with her. When it was later discovered, despite her efforts at concealment,3 that Osborne had been with her in the automobile, she nevertheless clung to her story about appellant, revising it, however, to include two men.

¶25(3) Beyond placing appellant in the automobile, Mrs. Young tied him to the crime only by equivocal generalities.4

¶26*36Except for the incident referred to in note 2 supra, it does not appear from her testimony that he said or did any specific thing marking him as a participant in her crime.5

¶27For all of the foregoing reasons, I would reverse the conviction. I would hold that it was error for the trial court not to have granted appellant’s motion for judgment of acquittal, because “the evidence [was] such that reasonable j ti-rymen must necessarily have [had a reasonable] doubt … Curley v. United States, 1947, 81 U.S.App.D.C. 389, 392,160 F.2d 229, 232. Even if Mrs. Young’s credibility was for the j’ury to determine, I think her uncorroborated testimony was too indefinite and equivocal for submission to the j'ury.6 This is especially true where her testimony conflicted with testimony of disinterested witnesses and she is shown to have had a motive to lie.