William C. Bishop v. United States

243 F.2d 32, 100 U.S. App. D.C. 88, 1957 U.S. App. LEXIS 2882

• Court: Court of Appeals for the D.C. Circuit
• Decided: March 28, 1957
• Docket: 13444
• Status: Published

Opinions

BASTIAN, Circuit Judge.

In 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.

Appellant 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.

The 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.”

The 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.

Appellant 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. The witness, Wing, a partner in the robbed restaurant, testified that after the robbery he saw a man drive the car for Young.³

Appellant 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.

We 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.

Affirmed.

1 . The District Judge in the instant case so instructed the jury.

2 . Young testified that she was living with Osborne without marriage, was addicted to alcohol, and was a self-confessed participant in this and another robbery. She testified that she never drank so much that she could not do her housework and watch after her little girl, and that she was not drunk when she started out on the trip which resulted in the crime for which appellant stands charged. “Once or twice,” to use her words, Osborne put her under a shower to sober her up. The occasion on which she committed herself to a hospital for treatment, referred to by the dissenting judge, was some three years before the commission of the crime under examination.

3 . Wing’s testimony was as follows, on direct:

“Q. Now, you say you saw a man in the car? A. A man driving.

“Q. Where was the man in the ear?

A. Well, I can’t tell. I know it is a man in the back. I know it is a man driving.

“Q. A man what? A. A man to drive the car.

“Q. A man driving the car? A. (The witness nodded affirmatively.)

“Q. Were you able — would you be able to identify tbe man that was driving tbe car? A. No, I can’t see the man.”

On cross-examination, be testified:

“Q. Could yon tell anything about whoever was in tbe car? A. Well, kind of frost. I see she getting ready to close tbe door. I saw tbe one man drive tbe car.

“Q. You didn’t see anybody else? A.

No, I didn’t see anybody. I see tbe man sitting over there.”