People v. Wade

• Decision Date: 23 December 1959
• Docket Number: Cr. 6493,6494
• Citation: 1 Cal.Rptr. 683,348 P.2d 116,53 Cal.2d 322
• Parties: , 348 P.2d 116 PEOPLE, Respondent, v. Lawrence WADE and Ella Mae Miller, Appellants.
• Court: California Supreme Court

Page 683

1 Cal.Rptr. 683

53 Cal.2d 322, 348 P.2d 116

PEOPLE, Respondent, v. Lawrence WADE and Ella Mae Miller, Appellants.

Cr. 6493, 6494.

Supreme Court of California, In Bank.

Dec. 23, 1959.

Wilmont Sweeney, Oakland, and Ruth Jacobs, San Francisco, under appointment by the Supreme Court for appellants.

Stanley Mosk, Atty. Gen., John S. McInerny and Miriam E. Wolff, Deputy Attys. Gen., for respondent.

WHITE, Justice.

This is an appeal pursuant to section 1239, subdivision (b), of the Penal Code from a judgment imposing the death penalty on Lawrence Wade following his conviction of murder in the first degree. He also appeals from a judgment of conviction of attempted robbery in the first degree. His codefendant, Ella Mae Miller, appeals from judgments of conviction of murder in the first degree and attempted robbery in the first degree following her pleas of guilty, and attempts to appeal from an order denying probation.

The material facts are in dispute. It appears, however, that the defendants were living together in defendant Ella Mae Miller's apartment in Oakland at the time of the incidents mentioned herein. They went for a ride in Ella Mae's Chrysler automobile on the evening of August 12, 1958, stopping near the intersection of Aileen and Shattuck Avenues in Oakland. Wade testified that after getting out of the automobile he crossed the intersection and entered the Idora Liquor Store in order to purchase some chewing gum; that the proprietor, the decedent, Sorenson, said 'What do you want, boy?' and, on Wade's hesitation, drew a gun and started shooting. Wade further testified that he drew his own pistol only after he was wounded, that he shot several times then turned and ran out of the store. He testified that he then entered the Chrysler which Ella Mae had moved nearer to the store and that he told her to drive him to a hospital as he was badly wounded.

When the automobile was halted several blocks from the scene of the shooting, Wade was found to be wounded in several places and was taken to a hospital.

Ella Mae testified that before stopping at the Idora Liquor Store on the night of the 12th of August they stopped at a grocery store somewhere in Oakland; that Wade went inside but returned shortly, saying '* * * the cash register was stuck and he couldn't get it open.' She could not remember the name or location of this grocery store, except that it was in Oakland. She further testified that when they halted near the Idora Liquor Store, Wade told her that he was watching the store, and he sat in the car for a while merely looking in the direction of the store. She said that after so sitting for a while, Wade left the automobile, walked over to the front of the store and then beckoned to her to bring the car across the intersection and double park near the store; that he then came over to the car and took two guns out of a canvas bag in the rear of the vehicle; that he put one, an air pistol, on the front seat, and that he took the other, the fatal weapon, a .22 caliber pistol, into the store with him. He was in the store only a short time, she averred, when she heard a commotion, and in a short time Wade reappeared, got in the car, and told her to 'move fast.'

Mrs. Helen Chen, also known as Helen Chen Yow, owner of a grocery store on Adeline Street in Oakland, testified that on the night of the shooting, and preceding it, she was alone in her store when a man entered and, by asking questions as to whether Mrs. Chen was alone in the store and motioning as if he had a gun in his pocket, so frightened her that she locked herself in a back room. She testified that she then heard the sounds of the cash register being manipulated, but later found nothing missing therefrom. She could not identify the man who entered her store, but testified that, like the defendant, he was a male negro wearing brown clothes. This testimony was admitted for the stated purposes of showing the intent of defendant Wade on the night of the shooting and to corroborate the testimony of codefendant Ella Mae.

Policeman Robert Sexauer testified that while guarding Wade at the hospital on the day after the shooting they had a conversation during which Wade said that on entering the Idora Liquor Store he had told Sorenson 'This is it,' and, from inside his pocket, pointed his gun at Sorenson. In rebuttal, testimony was elicited on behalf of Wade that he was in poor physical condition and was under the influence of narcotics prescribed by the hospital staff on the day of the alleged admissions. Wade testified that he did not remember ever seeing officer Sexauer before the trial.

Other evidence placed Wade in the store with his gun in hand, but a conflict developed as to which man, Wade or the deceased, had drawn a gun and shot first.

Wade testified that he was in possession of the guns because of fear for his safety due to threats allegedly made against his person by the man with whom Wade's wife was living.

The jury convicted Wade on both counts of the information, and following the hearing to determine a penalty for the murder conviction, recommended execution. A motion for a new trial was denied.

Ella Mae Miller had been arrested with Wade as she was driving them away from the scene of the shooting. Because of her admitted knowledge of Wade's criminal intent when he entered the Idora Liquor Store, and her cooperation thereafter until the time that both defendants were apprehended, she was charged as a principal in both the attempted robbery and the murder. It may be noted that the psychiatric analysis contained in the probation report on this defendant concluded that her background was such as to cause her to become passive and submissive at times of stress, and that her actions on the night of the shooting were probably almost involuntary from the moment that she became aware of Wade's criminal intent.

On the day set for her trial, Ella Mae, on the advice of the public defender, moved to change her former pleas of not guilty to guilty on the condition that she be given life imprisonment. The motion was granted by the court, and she was thereafter sentenced to life imprisonment on the count charging murder, probation being denied.

The appeals of the two defendants, being based on widely divergent grounds, must be dealt with separately. We shall consider first the appeal of defendant Wade.

As his first assignment of error Wade urges that his conviction must be reversed for the reason that it was based on the uncorroborated testimony of an accomplice, Ella Mae Miller. Pen.Code, § 1111.

That section provides: 'A conviction can 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 * * *.' Wade argues that none of the admissible evidence is sufficient legal corroboration for the testimony of Ella Mae to sustain his conviction. That she was an accomplice to any offense committed is admitted by the prosecution. Corroboration of her testimony is, therefore, necessary, or the conviction must be reversed. People v. Kempley, 205 Cal. 441, 456, 271 P. 478.

1] The only corroboration necessary for the evidence of an accomplice under the statute is that which tends to connect the defendant with the commission of the crime, not evidence of the corpus delicti. People v. Simpson, 43 Cal.2d 553, 563, 275 P.2d 31; People v. Claasen, 152 Cal.App.2d 660, 664, 313 P.2d 579. The corroborative evidence may be slight and entitled to little consideration when standing alone. People v. Wayne, 41 Cal.2d 814, 822, 264 P.2d 547. Defendant's own admissions are sufficient corroboration. People v. Negra, 208 Cal. 64, 69, 280 P. 354. Finally, corroborative evidence may be circumstantial. People v. Wayne, supra, 41 Cal.2d 814, 822, 264 P.2d 547.

, 3] The prosecution presented evidence of a substantial nature which tends to corroborate the testimony of Ella Mae in several respects. most significantly it produced one William E. Horton, a boy of 12, who testified that he saw the defendant pointing a gun at 'the liquor store man' through the window of the store while the witness was across the street. This would seem to be sufficient evidence of an attempt to commit robbery to corroborate Ella Mae on that point. Defendant objects to this testimony on the ground that young Horton told a contradictory story before the trial in that he first said that he saw Sorenson point a gun at the defendant. Such an objection goes to the credibility and weight of Horton's testimony, which are matters properly left for determination by the jury. People v. Lyons, 50 Cal.2d 245, 260, 324 P.2d 556. Horton's testimony was, therefore, properly admitted, and, as it tends to corroborate an element of Ella Mae's testimony, fulfills the requirements of Penal Code, § 1111. Furthermore, the testimony of Mrs. Chen would tend to show, if believed, that Wade went into the liquor store with the intent to commit a robbery therein, and the alleged admissions of the defendant testified to by officer Sexauer would also support the same conclusion. Objections to the admission of both of these items of evidence are hereinafter dealt with as independent assignments of error.

, 5] Defendant objects to officer Sexauer's testimony because, he asserts, an admission may be introduced only after the corpus delicti has been independently established. It is, however, well settled that the order of proof in a trial is within the discretion of the trial court. People v. Housman, 44 Cal.App.2d 619, 627, 112 P.2d 944. The corpus delicti need be established only by prima facie evidence aside from the extrajudicial admissions of the defendant (People v. Rupp, 41 Cal.2d 371, 378, 260 P.2d 1).

6] The conclusion seems inescapable in the light of the foregoing rules that the evidence of the manner in which Sorenson met his death coupled with the testimony of Ella Mae Miller...