# People v. Varnum > California Supreme Court · May 31, 1967 · 66 Cal. 2d 808 URL: https://www.frixlaw.com/law-library/cases/9567225 ## Case - **Full name:** The PEOPLE, Plaintiff and Respondent, v. THOMAS LAMAS VARNUM, Defendant and Appellant - **Court:** California Supreme Court - **Decided:** May 31, 1967 - **Citations:** 66 Cal. 2d 808; 59 Cal. Rptr. 108; 427 P.2d 772; 1967 Cal. LEXIS 344 - **Precedential status:** Published - **Opinion:** Concurrence by Burke - **Judges:** Burke, Peters, Traynor - **Cited by:** 92 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9567225 ## Opinion text BURKE, J.—I concur in the affirmance of the judgment as to guilt but dissent from the reversal of the judgment as to penalty. In my opinion it is not reasonably probable that a result more favorable to defendant would have been reached had the asserted error relating to the testimony of Thomas Hanks not been committed. (Cal. Const., art. VI, § 13; People v. Watson, 46 Cal.2d 818, 836-837 [ 299 P.2d 243 ].) Hanks testified that he, defendant and others committed two robberies on the street, that defendant was unarmed on both occasions, and that on neither occasion was the victim hurt. These offenses were of a minor character compared to the other crimes defendant committed, and they added little to the prosecution’s case. It appears that defendant brutally killed his robbery victim, James Merrill, by shooting him twice in the back after robbing him and kidnaping him for the purpose of robbery. Defendant also committed an assault with an intent to commit robbery upon James Fields, and during the commission of that offense after Fields had fallen defendant pointed his revolver directly at Fields and pulled the trigger. In addition defendant has twice been convicted of the unlawful taking or driving of a vehicle. Furthermore, at the penalty trial the court informed the jury that "the general instructions having to do with credibility of witnesses and so forth [given at the guilt trial] apply to this phase of the case as well as to the other one,” and at the guilt trial the court fully instructed the jury regarding the law relating to an accomplice’s testimony. The instructions informed the jury that the testimony of an accomplice is to be viewed with distrust and that a conviction may not be had upon the testimony of an accomplice unless it is corroborated, and the instructions further defined an accomplice, stated that if the offenses involving Merrill were committed by anyone then as a matter of law Hanks was an accomplice, and explained what corroboration is sufficient. In view of these instructions and the further instruction given at the penalty trial that evidence of other crimes may not be considered as evidence unless proved beyond a reasonable doubt, it does not appear that the alleged error was prejudicial. *821 Under the circumstances, in my opinion the alleged error relating to Hanks’ testimony did not result in a miscarriage of justice, and I would affirm the judgment in its entirety. MeComb, J., concurred. Appellant’s petition for a rehearing was denied June 28, 1967. White, J., * sat in place of Mosk, J., who deemed himself disqualified. Peters, J., was of the opinion that the petition should he granted. Retired Associate Justice of the Supreme Court sitting under assignment by the Chairman of the Judicial Council. 1 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9567225. Public record. Not legal advice.