# People v. Robinson

> California Supreme Court · June 16, 1964 · 61 Cal. 2d 373

URL: https://www.frixlaw.com/law-library/cases/9848776

## Case

- **Full name:** The PEOPLE, Plaintiff and Respondent, v. DAN CLIFTON ROBINSON, Defendant and Appellant; THE PEOPLE, Plaintiff and Respondent, v. CHARLES DRIVERS, Defendant and Appellant
- **Court:** California Supreme Court
- **Decided:** June 16, 1964
- **Citations:** 61 Cal. 2d 373; 38 Cal. Rptr. 890; 392 P.2d 970; 1964 Cal. LEXIS 211
- **Precedential status:** Published
- **Opinion:** Dissent by Schauer
- **Judges:** Peters, Schauer
- **Cited by:** 61 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

SCHAUER, J.
I dissent from the reversals of the judgments of conviction as to both Robinson and Drivers. In my view all but one of the asserted errors found by the majority are not errors at all; and that one (which at most is questionable)—i.e., failure of the trial court to instruct on its own motion that Hickman was an accomplice as a matter of law—is clearly not prejudicial (Cal. Const., art. VI, §4%) when analyzed in the light of the record, including the instructions given.
Asserted Error in Allowing Hickman to Make a Judicial Confession of the Crime
The majority hold (ante, pp. 392-394) that the trial court erred in allowing Hickman (a convicted eoeonspirator who has not appealed) to testify in detail as to the facts of the crime and thus make a full judicial confession. The opinion asserts that such confession was “elicited” by a cross-examination that “exceeded the scope” of the direct examination of Hickman, which dealt only with the initially claimed, but subsequently disproved, “involuntariness” of his extrajudicial confession. In my view neither the established facts nor the applicable law support this holding. A reading of the relevant portion of the transcript (see especially fn. 1, post) shows that the matter assertedly “elicited” or “obtained” *408 by the prosecutor was in fact volunteered by Hickman in the course of an indubitably proper cross-examination.
It is undisputed (see majority opinion, ante, p. 385, fn. 11a) that Hickman took the witness stand and testified on direct examination that his previous account (given on his request before the confession was received in evidence) of asserted events allegedly coercing his confession was true. The prosecuting attorney then cross-examined, and that inquiry began and progressed to the volunteer statement exactly as set forth in the margin. 1 It is apparent from this transcript that the italicized testimony—i.e., “and the statement I gave Sergeant Wrona is the truth’’—was volunteered *409 by Hickman rather than being responsive to any question theretofore asked by the prosecutor. 2 It is true that a number of the prosecutor’s inquiries thereafter were phrased in the form, technically, of leading questions. But on cross-examination this is not improper. There is no indication that Hickman at this time was in any way reluctant to tell the truth on the witness stand: not only did he first volunteer the subject testimony, but throughout the entire remainder of the cross-examination he made no objection or motion to strike, and declined to join in those made by his codefendants. We may reasonably infer that Hickman—as he had every right to do—chose this course of action in the hope of impressing the jury with his candor and asserted minimal participation in the actual shooting and thus warrant a sentence of life imprisonment rather than death. 3 Hickman’s tactics proved justified, as in his case the lesser penalty was in fact assessed by the jury; and it is significant that Hickman, alone of those convicted, chose neither to move for a new trial nor to appeal.
The majority’s extended discussion about hearsay in relation to Hickman’s testimony appears to be devoid of materiality because no such issue is actually involved. As counsel at the trial apparently well knew, Hickman’s judicial confession was not subject to hearsay objection at all. This, the majority ultimately aelmowledge (ante, p. 393) : “the factual testimony of any witness, given in open court, is not hear *410 say.” But the opinion nevertheless ascribes error to this portion of the trial: it holds that the subject cross-examination of Hickman “exceeded the scope” of his direct examination. As will next be shown that holding is untenable for at least three independently adequate reasons.
To begin with, the record discloses that the only objection made on the ground that the cross-examination of Hickman exceeded the scope of the direct was belatedly voiced by counsel for Robinson; no such objection was at any time made or joined in either by Hickman, who was the defendant actually being examined, or by Drivers, who now benefits from the asserted error. Robinson’s objection came too late, in that Hickman had already testified without such objection that his extrajudicial statement was true and in particular that he and Robinson and Drivers had several times discussed robbing the Pox Hills Country Club about three weeks before the night of the crime. Moreover, no motion was made by any defendant to strike the latter testimony, which therefore remained in the record for the jury to consider with the defendants ’ acquiescence.
Secondly, even if a timely objection had been made by the proper party it would not have warranted restricting the prosecutor’s right of cross-examination in the circumstances here shown and under existing law. It has been held in varying contexts that if a defendant in a criminal case volunteers a statement on cross-examination he may be further examined thereon by the prosecuting attorney (or judge), even though the statement concerns matters which were not embraced in his direct examination. (People v. Peete (1946) 28 Cal.2d 306, 321 [10] [ 169 P.2d 924 ]; People v. Sutton (1887) 73 Cal. 243, 244-245 [ 15 P. 86 ]; People v. Shields (1945) 70 Cal.App.2d 628, 638 [7] [ 161 P.2d 475 ]; People v. Fitch (1938) 28 Cal.App.2d 31, 44 [6] [ 81 P.2d 1019 ].) Applying that rule to the ease at bench, the subject cross-examination would thus have been proper even if it had technically “exceeded the scope” of Hickman’s direct examination.
Thirdly, it does not appear that the latter’s scope was “exceeded” in any event. The majority acknowledge (ante, p. 392) that “it was a proper subject of cross-examination” to ask Hickman whether “the facts stated [in his extrajudicial confession] were true,” on the theory that “the truth or falsity of the statement is a fact from which the jury might infer that it was voluntary.” But the majority then assert (ante, p. 393) that “the truth or falsity of any fact, *411 without relation to the extrajudicial statement, bore no relationship to the matter developed on direct.” That point would be relevant only if during the subject cross-examination some new fact had appeared; but again the record is otherwise, and discloses that no substantial incriminating fact was “elicited” or “obtained” in this cross-examination that had not already been brought out in the admittedly proper reading of Hickman’s extrajudicial confession to the jury. It follows under the majority’s analysis that the prosecutor would have remained within the bounds of “a proper subject of cross-examination” if only he had prefaced each factual inquiry with the phrase, “Is it true that, as you said in your prior statement given to Officer Wrona on February 4, 1962, and heretofore read to the jury, .. ?” It would be a time-wasting exercise to require the prosecutor to repeatedly utter such a ritualistic formula. He was properly seeking to verify the portions of truth, if any, in Hickman’s extrajudicial statement; what more logical and effective way to do so than to ask Hickman if each of the confessed events actually occurred ? There can be no doubt that the court and the jury understood the prosecutor’s purpose and the significance of his questions.
Hickman’s answers, of course, constituted a judicial confession implicating each of his codefendants, but the latter have no ground to complain of its admission in evidence against them. As noted above (and as the majority acknowledge), such a confession is not hearsay; rather, “it is direct evidence competent for the proof of all elements of the crime” (People v. Ditson (1962) 57 Cal.2d 415, 445 [18] [ 20 Cal.Rptr. 165 , 369 P.2d 714 ].) It was volunteered by Hickman for reasons best known to himself ; 4 and if in so doing he also dealt a blow to his codefendants’ chances of acquittal, such is a risk that must be run by those who conspire together to break the law. It is, after all, far from rare that one of a band of arrested conspirators decides to unburden his guilt at the bar of justice, and his partners in crime must be prepared to face that eventuality.
Asserted Insufficiency of the Evidence Against Drivers
The majority further hold (ante, pp. 397, 404) that there was insufficient evidence to corroborate Hickman’s judicial *412 confession insofar as it implicated Drivers in the commission of the crime. In reaching that conclusion, however, the majority rely on what we have heretofore held to be an erroneous and obsolete theory of the function of an appellate court in reviewing the issue of sufficiency of corroborative evidence. When the evidence here presented is viewed under currently accepted principles of law, it is seen to be abundantly sufficient for the purpose of corroboration of an accomplice.
Penal Code section 1111 declares in relevant part that “A conviction cannot be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense ; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof. ’ ’ (Italics added.) Construing this requirement we have consistently held—as summarized by Mr. Justice Peters in People v. Howk (1961) 56 Cal.2d 687, 704 [10] [ 16 Cal.Rptr. 370 , 365 P.2d 426 ], quoting from People v. Wade (1959) 53 Cal.2d 322, 329 [1, 2] [ 1 Cal.Rptr. 683 , 348 P.2d 116 ]—that “The only corroboration necessary [for compliance with the statute] is that which tends to connect the defendant with the commission of the crime, not evidence of the corpus delicti. [Citing cases.] The corroborative evidence may be slight and entitled to little consideration when standing alone. [Citing case.] Defendant’s own admissions are sufficient corroboration. [Citing ease.] Finally, corroborative evidence may be circumstantial. [Citing case.]” (Italics added.) (Accord, People v. Santo (1954) 43 Cal.2d 319, 327 [5, 6] [ 273 P.2d 249 ], and eases there cited.)
In this connection the majority discuss the evidence of Drivers’ fingerprints which were found on both sides of the right-hand front (passenger) door of the intended getaway car. It will be remembered that this car, a 1950 Ford purchased by defendant Robinson only a day or so before the commission of the crime, was abandoned with its gears jammed in the parking lot of the Fox Hills Country Club, facing the exit, and with its rear license plate obscured by means of a white rag. Although the fingerprint expert could not fix “an exact time” when Drivers’ prints were placed on the car, he also testified that one such print was found on the outside surface of the door glass and that prints disappear soon when exposed to the elements in that manner. The majority summarized (ante, p. 398) by saying that this evi *413 dence “showed no more than that Drivers had been present in or about the Ford on some recent date.” But the majority then stress the fact that both Drivers, who is Hickman’s cousin, and Campbell, the original owner of the Ford, had been frequent visitors to Hickman’s apartment. On the basis of that fact the majority proceed to deny any corroborative value to the evidence of Drivers’ fingerprints, theorizing that such prints “are as equally susceptible to an inference that they came there innocently, as they are to any inference that their presence connects defendant with the commission of the crime.” (Italics added.) (Ante, p. 398.) Again, the majority refer to Drivers’ story to the police wherein he claimed that early in the evening of the crime he and Robinson had driven in the Ford to take one of Hickman’s children to visit a friend; and the majority conclude (ante, p. 399) that the “important feature” of this explanation is that it “shows that Drivers’ fingerprints could have been placed on the Ford in a manner entirely unconnected with the crime. ’ ’ 5
It is true that in such relatively early cases as People v. Robbins (1915) 171 Cal. 466, 470 [ 154 P. 317 ], relied on by the majority, support may be found for their theory that corroborative evidence is insufficient as a matter of law when, in the opinion of the reviewing court, it is “equally susceptible to an inference” of the defendant’s innocence. But in People v. Henderson (1949) 34 Cal.2d 340 [ 209 P.2d 785 ], this court recognized that such a theory is in conflict with the proper function and limits of appellate review as set forth in the leading case of People v. Newland (1940) 15 Cal.2d 678, 681 [l]-684 [2] [ 104 P.2d 778 ]. Thus we stated in Henderson (at pp. 346-347 [6] of 34 Cal.2d) that “When as in the present record it is discovered that there is testimony aside from that of the accomplice which tends to connect the de *414 fendant with the commission of the crime, the function of the appellate court is performed. Questions of the weight of the evidence and the credibility of the witnesses are for the trial court, and since the circumstances reasonably justify the finding of guilt, an opposing view that they also may be reconciled with innocence will not warrant interference with the judgment on appeal. (People v. Newland, 15 Cal.2d 678, 681 [ 104 P.2d 778 ], and cases cited.) ” (Italics added.) Other decisions continue to reflect a similar view (see, e.g., People v. Malone (1947) 82 Cal.App.2d 54, 60 [2-3] [ 185 P.2d 870 ], and People v. Allen (1951) 104 Cal.App. 2d 402, 412 [5] [ 231 P.2d 896 ]), and in People v. Gallardo (1953) 41 Cal.2d 57, 63 , unnumbered fn. [ 257 P.2d 29 ], we recognize and articulate the change in the law as follows: “Although it has been said that corroboration is not sufficient where the circumstances are consistent with the innocence of the accused (see, e.g., People v. Davis, 210 Cal. 540, 555 [ 293 P. 32 ]; People v. Kempley, 205 Cal. 441, 461 [ 271 P. 478 ]; People v. Robbins, 171 Cal. 466, 470 [ 154 P. 317 ]), the more recent decisions have held that whether the corroborating evidence is as compatible with innocence as it is with guilt is a question of weight for the trier of fact (see People v. Henderson, 34 Cal.2d 340, 347 [ 209 P.2d 785 ]; People v. Estes, 99 Cal.App.2d 745, 747 [ 222 P.2d 454 ]; cf. People v. Newland, 15 Cal.2d 678, 681 [ 104 P.2d 778 ]).” 6 It thus appears that the majority opinion seeks to resurrect an outmoded theory of appellate review whose passing was expressly observed by this court over a decade ago.
Moreover, the majority reject the fingerprint evidence as showing only “association with the criminal,” not with the crime itself (citing People v. Reingold (1948) 87 Cal.App.2d 382, 399-400 [6] [ 197 P.2d 175 ], and People v. Braun (1939) 31 Cal.App.2d 593, 601-602 [3] [ 88 P.2d 728 ]). But this court has held that “The relationship of the men [i.e., the defendant and his accomplice] and all of their acts and conduct may be considered in determining whether there are *415 corroborating circumstances.” (People v. Henderson (1949) supra, 34 Cal.2d 340, 343 [4].) In the latter case we held that within the evidence that “shows corroboration” was the following; “It was established by the testimony of the accomplice’s sister and by the two women companions that Roberts [the accomplice witness] and the defendant were together most of the day preceding the attempted robbery and that they were together in the defendant’s ear when the women were taken to their homes which was about three hours before the crime was committed.” (Id. at pp. 345-346 [5] of 34 Cal.2d.) Likewise, in the case at bench, Drivers’ own admissions to the police placed him in company with Robinson in the Ford in the late afternoon and early evening of the night of the crime, only a few hours before the murder was committed; and the evidence of Drivers’ recent fingerprints inside and outside that same vehicle was unquestionably relevant to establishing the kind of “relationship” referred to in Henderson . It is true that here, just as in Henderson, the mere association of Drivers and Robinson shortly before the crime is not in and of itself sufficient corroboration; but “such association when considered in conjunction with other corroborating circumstances has been held to be a factor tending to connect an accused with the commission of the offense.” (People v. Moore (1963) 211 Cal.App.2d 585, 594 [8] [ 27 Cal.Rptr. 526 ], citing People v. Henderson (1949) supra; People v. Hoyt (1942) 20 Cal.2d 306, 310-311 [ 125 P.2d 29 ]; and People v. Willmurth (1947) 77 Cal.App.2d 605, 611-612 [1] [ 176 P.2d 102 ]; accord, People v. Wayne (1953) 41 Cal.2d 814, 822 [2b] [ 264 P.2d 547 ]; People v. Frankfort (1952) 114 Cal.App.2d 680, 692 [17] [ 251 P.2d 401 ]; People v. Dodd (1952) 113 Cal.App.2d 682, 686 [1, 2] [ 248 P.2d 965 ]; People v. Ross (1941) 46 Cal.App.2d 385, 395 [3] [ 116 P.2d 81 ], and cases there cited.)
The latter proposition, of course, is simply an illustration of the broader principle that the prosecution is not required to single out an isolated act or word which in and of itself is offered as sufficient corroboration of the accomplice’s testimony; rather, the prosecution may rely for this purpose on the combined and cumulative effect of all the relevant nonaccomplice evidence and the inferences that the jury may reasonably have drawn therefrom. The majority purport to recognize this principle in asserting (ante, p. 398) that none of the items of evidence discussed, “independently or cumulatively, constituted the requisite corroboration.” But the *416 majority then go on to consider and evaluate each item “independently”; nowhere are the corroborative facts actually considered “cumulatively,” nowhere do the majority see the whole picture that was put before the jury.
For example, the majority view the evidence of Drivers’ conflicting statements to the police entirely out of context. The majority say (ante, p. 400) that the witness, Officer Wrona, “was able to point to but one conflict in the repetition of a narrative covering Drivers’ movements for three days (i.e., the place in which he slept during the early morning hours of February 4th).” But this seemingly innocuous discrepancy takes on a far different light when it is remembered that it was precisely during those same “early morning hours of February 4th” that this murder was committed. The inconsistency in the suspect’s explanations of his whereabouts during that period was obviously of the utmost importance. As that inconsistency could not reasonably be reconciled with total innocence, the majority are compelled to concede (ante, p. 400) that “At best, it tends to prove that Drivers, while talking to the police, had a guilty frame of mind.” (Italics added.) But again attempting to find this evidence “equally susceptible to an inference” that Drivers was innocent of this crime, the majority ask: “But in regard to what? It may be reasonable to assume that he had in mind some activity which he desired to hide from the police. But, there is no reasonable inference that his conflicting replies were made for the purpose of hiding connection with the crime with which he is now charged.” (Ante, pp. 400-401.)
To so hold is to refuse to face the facts of this ease. It will be remembered that when first asked (on the way to the police station) where he had spent the night of February 3-4, 1962, Drivers told the police he had spent it at his aunt’s house. Once at the police station, however, Drivers changed his story and said he was in a dance hall from 10:30 p.m. that evening to 2 a.m. the next morning, but that he saw no one there he knew; that he then “had a hamburger” and went to Hickman’s apartment at 3:30 or 4 a.m., noticed that it had been searched, and spent the remainder of the night there. It is well settled that “False and contradictory statements of a defendant in relation to the charge are themselves corroborative evidence.” (People v. Santo (1954) supra, 43 Cal.2d 319, 327 [8]; accord, People v. Simpson (1954) 43 Cal.2d 553, 564 [6] [ 275 P.2d 31 ]; People v. Hannie (1962) 202 Cal.App.2d 462, 465 [2] [ 20 Cal.Rptr. 808 ]; People v. Dykes (1961) 198 Cal.App.2d 75, 80 [2b] [ 17 Cal.Rptr. 564 ]; *417 People v. Neely (1958) 163 Cal.App.2d 289, 301 [3] [ 329 P.2d 357 ]; cf. People v. Osslo (1958) 50 Cal.2d 75, 93 [4] [ 323 P.2d 397 ], and eases there cited.) The majority's attempt to distinguish Santo is ineffectual, for it is obvious that in this area of the law each ease must turn on its own facts. What is important is the rule of law illustrated by such decisions, and here the jury were properly instructed in that regard.
Moreover, the jury were entitled to consider more than the bare contradiction between Drivers’ stories; they could also consider the contents of either or both of such explanations. In particular, the jury could weigh the significance of Drivers’ claim that at 10:30 p.m. on February 3 he went to a public dance hall and remained there until 2 a.m. on February 4. Such an alibi would neatly account for his whereabouts during the crucial period of time relating to the murder (which was committed shortly after 1 a.m. on February 4), yet would have been virtually impossible to verify because the asserted locale was a public dance hall and Drivers claimed he knew no one there.
The jury could also consider the significance of Drivers’ movements thereafter. In spite of the lateness of the hour he did not return home but (according to his second story to the police) went to Hickman’s apartment at about 3:30 or 4 a.m. that night. The jury could reasonably infer that the purpose of Drivers’ nocturnal visit was not an innocent social call, but to learn whether Robinson and Hickman had successfully escaped after their getaway ear had stalled while leaving the scene of the crime. Upon reaching Hickman’s apartment, however, Drivers observed that the police had arrived before him and were still on the premises; but rather than entering to see if he could be of any assistance to his cousin, Drivers remained outside until the police departed. He then went into the apartment and found that it had been searched and Hickman was not there; nevertheless Drivers remained in the empty apartment until morning. When no one returned (Robinson and Hickman had already been arrested, but Drivers did not yet know this) he left and spent the day at his uncle’s house. At 10 p.m. Drivers took a bus to downtown Los Angeles, and slept that night in an all-night movie theater. The majority assert (ante, p. 401) that there was no evidence of flight on Drivers’ part, but fail to mention any of the foregoing facts. While Drivers’ evasion and flight may not *418 have been as prolonged 7 as was shown of the defendants in People v. Santo (1954) supra, still the jury could reasonably infer that such was his original intent as manifested by the above described movements. The question was one for the jury to determine (Pen. Code, § 1127c- People v. Santo (1954) supra, 43 Cal.2d 319, 330 [13-14]), and they were properly so instructed.
In summary, the picture presented to the jury was as follows: Drivers’ contradictory stories to the police concerned his whereabouts not just on any night, but during the precise period of the murder of Grego at the Fox Hills Country Club on February 4, 1962. Drivers’ fingerprints were found not just in a car of “a relative,” but in the particular car used by that relative and his accomplices as an attempted getaway vehicle after the commission of that same murder. And Drivers’ evasive movements thereafter covered not just any sequence of time but the days and nights immediately following, again, the murder of Grego in the early morning hours of February 4. It is stretching the long arm of coincidence to the breaking point to require the jury as a matter of law—as the majority do—to find no corroboration of Hickman’s testimony in the cumulative effect of the foregoing sequence of events.
Asserted Error in Accomplice Instructions
The majority hold (ante, pp. 394-396) that the trial court prejudicially erred in instructing that whether or not any witness in the case was an accomplice was for the jury to determine, and in failing to give on its own motion an instruction that Hickman was an accomplice as a matter of law. But even if we assume error was so committed, consideration of the other instructions given on this subject shows that it could not reasonably have been prejudicial. The majority predicate prejudice on the ground (ante, p. 396) that this claimed error “denied the codefendants the protection intended by Penal Code section 1111.” But here the court actually gave better protection to the eoconspirators than would have been provided by instructing that Hickman was an accomplice as a matter of law: the court went right to the point and specifically told the jury that “In weighing the testimony of defendant Willie Warner Hickman as against his codefendants you ought to view it with distrust.”
*419 Obviously the real protection afforded by Penal Code section 1111 is not the right to an instruction that on the facts shown a certain witness is an accomplice as a matter of law; that instruction is at most preliminary to the true protection provided by that section—i.e., the right to be free from a conviction had “upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense. ...” The latter right was fully accorded to Hickman’s codefendants, for complete instructions were given in the language of section 1111 and in the language of our prior decisions explaining the jury’s duties with respect thereto. 8
The majority also assert (ante, p. 395) that the trial court “should not have invited the jury to speculate” on who was an accomplice. But when, as here, the jury are otherwise properly instructed 9 and the facts establishing complicity are so clear that an appellate court can hold (as do the majority here) that the witness is an accomplice as a matter of law, we must presume that the jury obediently applied the instructions to those facts and found Hickman to be an accomplice. To do otherwise would be to presume that the jury violated *420 their duty. 10 Since the jury must have thus found Hickman to be an accomplice, and in any event were specifically instructed that “You ought to view [Hickman’s testimony] with distrust,” it is not reasonably probable that a result more favorable to the defendant Drivers would have been reached in the absence of the declared error, and hence no prejudice appears. (Cal. Const., art. VI, § 4%; People v. Watson (1956) 46 Cal.2d 818, 836 [12] [ 299 P.2d 243 ].) The issue, moreover, is far from novel, and has been decided in the manner set forth above by at least two opinions of this court (People v. Barclay (1953) 40 Cal.2d 146, 152-153 [5] [ 252 P.2d 321 ], and People v. Ferlin (1928) 203 Cal. 587, 601-602 [10] [ 265 P. 230 ]) and a long line of cases in the District Courts of Appeal (see, e.g., People v. Richardson (1960) 182 Cal.App.2d 620, 623 [2,3] [ 6 Cal.Rptr. 61 ]; People v. Chapman (1949) 93 Cal.App.2d 365, 383 [21]-384 [22] [ 209 P.2d 121 ]; People v. Wahnish (1937) 20 Cal.App.2d 58, 62-63 [1] [ 66 P.2d 677 ] ; People v. Bonner (1935) 5 Cal.App.2d 314, 316-318 [3] [ 42 P.2d 694 ] ; People v. Rous (1931) 118 Cal.App. 534, 537 [4] [ 5 P.2d 470 ]; People v. Knoth (1931) 111 Cal.App. 250, 253-254 [3] [ 295 P. 577 ]; cf. People v. MacKenzie (1956) 144 Cal.App.2d 100, 108-109 [ 300 P.2d 700 ]; but see People v. Dailey (1960) 179 Cal.App.2d 482, 485 [3]-486 [5] [ 3 Cal.Rptr. 852 ].)
The above mentioned specific accomplice instruction (“In weighing the testimony of . . . Hickman as against his codefendants you ought to view it with distrust” (italics added)) was, of course, obedient to the command of Code of Civil Procedure section 2061, which declares that the jury “are ... to be instructed by the court on all proper occasions : ... 4. That the testimony of an accomplice ought to be viewed with distrust, ...” It bears emphasis that here the court did not qualify the latter instruction by telling the jury that it was applicable only if they found Hickman to be *421 an accomplice; rather, the jury were affirmatively instructed that in weighing Hickman’s testimony as against his codefendants “you ought to view it with distrust.” The court thereby indicated its opinion that Hickman was an accomplice as a matter of law; and in any event, the giving of this instruction on the court's own motion afforded better than the measure of protection to Hickman’s codefendants that would have been provided by instructing that as a matter of law Hickman "was an accomplice. ’ ’
Asserted Error in Giving Conspiracy Instructions
The majority hold (ante, pp. 396-397) that the trial court committed prejudicial error in instructing on the law of conspiracy. This—to me—on any view of the record, is an erroneous and confusing holding. I think we would not permit it to stand in a District Court of Appeal published opinion. It is not contended that any such instruction was an incorrect statement of law; rather, it is said first that “the question of conspiracy was not involved” and “conspiracy never did become an issue” in this case, and hence that the giving of conspiracy instructions “must have confused the jury” (citing People v. Sanchez (1947) 30 Cal.2d 560, 572 [7] [ 184 P.2d 673 ]). To the contrary, the issue of conspiracy was indisputably very much involved in the evidence put before the jury. Were the defendants accomplices? Did they by agreement cooperate in committing the crimes charged ? Hickman’s testimony on the witness stand constituted ample direct evidence of such a conspiracy: he testified that he and Robinson and Drivers had discussed robbing the Pox Hills Country Club three or four times “or more”; that among the matters discussed was the question of “what night it would be”; that on the day of the crime Hickman “told ’em [i.e., Robinson and Drivers] what time to come” to the country club; that when Hickman saw Guliex in the car waiting in the parking lot, “I figured that he would get his part” and that there would be a four-way split of the loot; that when the others first met Hickman at 11 p.m. he told them in substance that “We can’t hold the robbery right now because there’s a lot of people inside,” and that it was agreed that Hickman would return to tell the others when “The coast is clear”; thereafter the robbery was attempted on Hickman’s signal, culminating in the wounding of Morrissey and the murder of Grego.
It cannot be seriously argued that the foregoing testimony did not constitute sufficient evidence upon which the jury *422 could base a finding that Hickman, Robinson, and Drivers conspired to rob the Fox Hills Country Club on the night of February 3-4, 1962. Indeed, the majority appear to indirectly acknowledge this fact by referring to Robinson’s refraining from naming “his coconspirators” (ante, p. 380, fn. 3) and to Guliex’s having placed himself “in the conspiracy” (ante, p. 395). There being such evidence of conspiracy in the record, it was not error to instruct the jury on the law of conspiracy. It is immaterial that (as the majority emphasize) no separate crime of conspiracy was charged in the information and the prosecution did not amend its pleading in this regard. The state is not required to charge every crime which the defendants may have committed. (See People v. Pike (1962) 58 Cal.2d 70, 88 [15] [ 22 Cal.Rptr. 664 , 372 P.2d 656 ]; People v. Ditson (1962) supra, 57 Cal.2d 415, 447 [22]; People v. Davis (1957) 48 Cal.2d 241, 250 [11] [ 309 P.2d 1 ]; People v. Tanner (1935) 3 Cal.2d 279, 299 [7] [ 44 P.2d 324 ]; People v. Wells (1960) 187 Cal.App.2d 324, 329-330 [12] [ 9 Cal.Rptr. 384 ].)
The majority concede, as they must, the latter long-established principle, but point to the fact that the conspiracy instruction contained no admonition that a defendant may not be found to be a coconspirator on the uncorroborated testimony of an accomplice; from this premise the majority conclude (ante, p. 397) that the conspiracy instructions as given were “highly prejudicial” because “they constituted an invitation to the jury to find that Robinson and Drivers were members of a conspiracy, predicated solely on the uncorroborated testimony of Hickman, and so guilty of the charge of murder.” But under the authorities cited herein-above, we must presume that the jury followed the accomplice instructions given, and found (on evidence so clear that the majority hold Hickman to be an accomplice as a matter of law) that Hickman was in fact an accomplice; it follows that without violating their duty the jury could not have found Robinson and Drivers to be eoconspirators on Hickman’s testimony unless the latter was also found to be corroborated. That corroboration, as shown in detail herein-above, was amply provided by the totality of the evidence put before the jury other than Hickman’s testimony.
Asserted Grounds for Reversal of the Judgments
For the foregoing reasons I am of the opinion that no prejudicial error was committed as to Drivers and that, con *423 trary to the majority’s conclusion of insufficiency (ante, p. 404), the evidence amply support this appellant’s conviction
As to his coappellant, the majority—although they reverse his conviction—admit that “there is clearly sufficient evidence to support Robinson’s conviction.” (Ante, p. 405.) Such evidence is found in Robinson’s extrajudicial confession, in the fact that “the undisputed evidence placed him at the scene of the crime,” and in the inference that “his telephoned report of the theft of the ear was nothing but an attempt to create an alibi for himself.” (Ante, p. 405.)
Moreover, the foregoing evidence of Robinson’s guilt was unaffected by any of the errors discussed in the first part of the majority opinion. Yet the majority still conceive and project a theoretical basis for reversing the judgment as to Robinson as well. The majority note (ante, p. 405) that Robinson’s extrajudicial confession was properly admitted by the trial court, “subject to its instructions that the jury must first determine that it was voluntary before it could consider it as binding upon Robinson.” The majority then make this remarkable statement: “However, we cannot say, as a matter of law or fact, that the jury accepted the prosecution’s testimony regarding the voluntary character of Robinson’s confession, or that it rejected Robinson’s claim of coercion.” (Italics added.) (Ante, p. 405.) The statement is the more remarkable because earlier in the opinion (ante, p. 391, fn. 19) the majority brush aside the same issue of coercion with the following analysis of the relevant facts: “There is no substantial evidence of coercion. Not only was Robinson’s testimony in this regard unconvincing, and thoroughly rebutted, but the admitted circumstances militate against any inference of coercion. ...” (Italics added.) No citation of authorities is needed to demonstrate that if there is “no substantial evidence of coercion,” then we not only can say that the jury must have “rejected Robinson’s claim of coercion”—we must say it, if we are to retain integrity in the judicial process; i.e., to remain guided by settled principles of law. To do otherwise is in effect to presume in favor of reversal that the jury violated their sworn duty to be governed (as they were instructed) “solely by the evidence introduced in this trial and the law as stated to you by the Court,” for it presumes that the jury would illegally reach a finding of coercion when “There is no substantial evidence” of that asserted fact.
This patently incongruous conjecture progenerates the fundamental error of the remainder of the opinion. The ma *424 jority speculate (ante, p. 405) that “If the jury determined that the confession was coerced” they “may have” convicted Robinson on any of the three other theories (i.e., that Hickman’s judicial confession was improperly admitted; that the accomplice instructions were prejudically erroneous; or that conspiracy instructions should not have been given), and conclude that “Conviction on any one of the three theories last mentioned would have been improper.” Thus the majority (1) reject the only inference that the jury could legally have drawn—under the majority’s own analysis of the facts—from the evidence relating to the voluntariness of Robinson’s confession, and then (2) search the record for some assertedly erroneous theory upon which the jury conceivably “may have” convicted the defendant, holding that conviction on such a speculated theory “would have been” improper. I cannot reconcile the majority’s apparently labored search for a ground of reversal with our constitutional duty as an appellate court of the State of California (Cal. Const., art. VI, §4%). It is not our duty to search for error and presume prejudice in favor of reversal; it is our duty to assume, in the absence of a contrary showing, that the jury followed the court’s instructions. (People v. Gould (1960) 54 Cal.2d 621, 627-628 [8-9] [ 7 Cal.Rptr. 273 , 354 P.2d 865 ]; People v. Dabb (1948) 32 Cal.2d 491, 499 [8] [ 197 P.2d 1 ].)
In conclusion, for whatever it may he worth to those who participated in the proceedings below, I am impelled to express the personal opinion that seldom, in my experience, does a reviewing court see a record as commendably free of error, and creditable to the participants in the trial process, as this one. The trial judge and all counsel for both the People and each defendant, as I view the day-to-day action through the lens of the reporter, appear to me to have conducted the trial—and themselves—with appreciation of high ethical standards as well as with fairness, ability and devotion to duty. Neither is there any credible showing of overreaching at the apprehension or investigative stages.
I would affirm the judgments of conviction as to both appellants.
Me Comb, J., concurred.
Respondent’s petition for a rehearing was denied July 15, 1964. Schauer, J., and McOomb, J., were of the opinion that the petition should be granted.
"Cross Examination
"By Mb. Courtney [deputy district attorney]:
"Q. Well, Mr. Hickman, as I understand it then, all of the testimony which you gave here before in court you are again reiterating that all of those statements are true, is that right? A. [Hickman] Yes, sir, they are.
"Q. And you have been present in court and heard all the witnesses the People have called to testify as to many of those same events, is that right? A. Yes, sir.
"Q. And you have heard the officers from the County Jail come in here this morning and testify that they were the deck officers on the Deck 11-B-l where you were located and they do not recall any complaints; you heard that testimony? A. Yes, sir.
"Q. Is it still then your testimony that at least three times a day for the period of at least the week between February 7th and 14th that you registered complaints with the Deck Officers? A. Yes.
"Q. And this is your testimony, that you were beaten, as you have told us before, in the Detective Headquarters of Homicide down in the Sheriff’s Department, is that right? A. Yes, sir.
"Q. And that was by the Captain Etzel? A. Yes.
"Q. And you further testified that you were beaten again in the building where the polygraph is located? A. Yes.
"Q. By Officer Wrona and Officer Human? A. Yes, sir.
"Q. And all of that was the truth? A. Yes, sir, and the statement I gave Sergeant Wrona is the truth.” (Italics added.)
The "statement” that Hickman had given to Sergeant Wrona was his extrajudicial confession (summarized by the majority at pp. 380-382 ante) in which Hickman admitted, inter alia, the following facts establishing his guilt of the crime charged: that he and Bobinson and Drivers had planned for several weeks to rob the Fox Hills Country Club; that on the evening of the crime he went to work at the club at the usual time, with the understanding that the other two would join him there at the closing hour; that when Bobinson and Drivers arrived (with Guliex) in the club’s parking lot Hickman told them that it was not yet safe to carry out the robbery; and that Hickman subsequently returned to the parking lot and gave the signal, whereupon his coconspirators entered the club and proceeded with their prearranged plan for robbery which resulted in the murder of Grego.
The sole objection at this point was a motion to strike interposed by Robinson on the ground of nonresponsiveness of Hickman’s answer; the motion was denied. As a general rule, of course, such a motion is made, if at all, by the party examining the witness, who is entitled to conduct his inquiry in the manner he deems most effective and may prefer to retain an unsolicited but competent answer. (Holzer v. Read (1932) 216 Cal. 119, 122 [3] [ 13 P.2d 697 ]; Hirshfeld v. Dana (1924) 193 Cal. 142, 147-149 [1] [ 223 P. 451 ], and cases there cited; but see Code Civ. Proc., § 2056.) And it is clear that “The fact that an answer is not responsive to a question does not render it inadmissible” (Van Horn v. Southern Pac. Co. (1956) 141 Cal.App.2d 528, 536 [7] [ 297 P.2d 479 ], quoting from Westman v. Clifton’s Brookhdale, Inc. (1948) 89 Cal. App.2d 307, 314 [6] [ 200 P.2d 814 ]; see also 3 Wigmore, Evidence (3d ed. 1940) § 785).
As the majority point out (ante, p. 387, fn. 12), negating the possibility of a “deal” between Hickman and the prosecution were the facts that no motion was made to reduce the charge against Hickman to a lesser one than first degree murder, and that at the penalty phase the prosecutor urged the death penalty for all defendants including Hickman.
As observed hereinabove, it well may be that this act helped gain for Hickman the lesser penalty than that accorded his eodefendant Bobinson.
Again, in rejecting the People’s argument that corroboration of Drivers ’ presence at the shooting may also be inferred from the fact that three persons were admittedly present at that time and that Robinson and Guliex escaped together, the majority say (ante, p. 404, fn. 25) that "The facts here argued by the prosecution are equally susceptible to a theory that Hickman was at the shooting, picked up the shotgun, went immediately to the cemetery where he discarded the gun, mask and other paraphernalia, and then returned to the club to telephone the police.” (Italics added.) But the weight or effect to be given this evidence, in combination with all the other circumstances, would seem implicitly to be the proper function of the trier of fact—and of the trial judge—rather than of a reviewing court.
In accord with the latter proposition are such cases as People v. Farrell (1955) 133 Cal.App.2d 427, 431 [5] [ 284 P.2d 29 ]; People v. Wales (1955) 136 Cal.App.2d 846, 852-853 [3] [ 289 P.2d 305 ]; People v. Goldstein (1955) 136 Cal.App.2d 778, 789 [5c] [ 289 P.2d 581 ]; and in People v. Lyons (1958) 50 Cal.2d 245, 259 [6] [ 324 P.2d 556 ], this court reiterated the just quoted language from Senderson (at pp. 346-347 [6] of 34 Cal.2d), adding that “Regardless of how we might think we would resolve the conflicts if we were initially trying the issues of fact, our duty in the appellate function is clear. ’ ’
Drivers surrendered to the police on February 6, 1962, after he had been informed by his parole officer that the police were looking for him.
“A conviction may not be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense.___
“Corroborative evidence is additional evidence to the same point and although it need not be sufficient standing alone to support a conviction, it must relate to some act or fact which is an element of the offense with which the defendant is charged. It must, in and of itself and independent of the evidence which it supports, fairly and logically tend to connect the defendant with the commission of the alleged offense. Corroborative evidence may consist of other evidence of circumstances, the testimony of a witness other than an accomplice or the testimony or admissions, if any, of the defendant.
“In determining whether an accomplice has been corroborated you must first assume the testimony of the accomplice to be removed from the case. You must then determine whether there is any remaining evidence which tends to connect the other defendants with the commission of the offense. If there is none you must acquit the other defendants. If there is such evidence then his testimony is corroborated. But before you may convict any defendant you must find from all the evidence that it carries the convincing force required by law. ’ ’
See fn. 8, ante. The majority comment (ante, p. 394, fn. 20) that the court “gave several different instructions on the definition of an accomplice, some correct and some subject to doubt,” but decline to pass on their propriety. The record shows, however, that only two instructions defining accomplice were given, both correctly phrased hi the language of the relevant statutes (Pen. Code, §§ 1111 and 31).
The majority speculate that the jury’s inability to reach a verdict against Guliex means that at least some jurors “must have ... determined that Guliex was not an accomplice.” (Ante, p. 395.) But there is a vast difference between (1) the possibility in any given ease that the jurors may not have followed an instruction, and (2) a presumption by an appellate court that such violation of the jurors’ duty took place. Human nature being what it is, we can rarely if ever know in an appellate proceeding why a jury of twelve men and women may fail to reach (as to each and all of several defendants) unanimity in their deliberations. And no speculation as to what some members of that group of jurors “must have determined” as to one defendant will rise to the level of proof of what the whole jury in fact determined as to another defendant.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9848776. Public record. Not legal advice.