Russell

On September 28, 1966, around 1:20 a.m., three young men, the appellant, his codefendant McConnell and a juvenile, stole the rear seat, two rear quarter panels and two front bucket seats from a new Volkswagen which was on the lot of Colome Motors, a Volkswagen dealership in Montebello, California.

Appellant was convicted of grand theft after a nonjury trial in which his codefendant, McConnell, who had pleaded guilty to petty theft, testified for the People. On motion of defendant for a new trial, the trial court modified its judgment against him to one of petty theft, (Pen. Code, § 1181, *640 subd. 6) placed him on probation for three years and fined him $250 as one of the conditions of probation.

Appellant appeals from this modified judgment on the ground that he was convicted through the use of illegally-obtained evidence and that without such evidence, the testimony of his accomplice, McConnell, who identified him as the lookout, would have been legally insufficient within the meaning of Penal Code, section 1111. We are constrained to agree with appellant.

Penal Code, section 1111, requires that the testimony of an accomplice “be corroborated by such other evidence as shall…

I dissent.

The resolution of the question of whether the defendant Russell voluntarily, knowingly and intelligently waived his constitutional rights as defined in Miranda was within the province of the trial judge. (See People v. Lara, 67 Cal.2d 365, 389 [ 62 Cal.Rptr. 586 , 432 P.2d 202 ].) Officer Acuna’s statement to Russell that it might be better if he talked did not establish as a matter of law that Russell’s subsequent statement was not the product of his free and intelligent choice. (See People v. Hill, 66 Cal.2d 536, 549-550 [ 58 Cal.Rptr. 340 , 426 P.2d 908 ].) In the exercise of his function of *647 determining the inferences reasonably to be drawn from the evidence, the trial judge was not precluded from finding that there was no offer or promise, express or implied, of leniency of any nature. Accordingly, the trial judge was warranted in reaching the conclusion that Russell’s response was not the product of cajolery but resulted from his choice, made voluntarily, knowingly and intelligently, to waive his right to counsel and his right to remain silent. Since Russell’s statement was admissible, it furnished sufficient corroboration of the testimony of the accomplice.…

On September 28, 1966, around 1:20 a.m., three young men, the appellant, his codefendant McConnell and a juvenile, stole the rear seat, two rear quarter panels and two front bucket seats from a new Volkswagen which was on the lot of Colome Motors, a Volkswagen dealership in Montebello, California.

Appellant was convicted of grand theft after a nonjury trial in which his codefendant, McConnell, who had pleaded guilty to petty theft, testified for the People. On motion of defendant for a new trial, the trial court modified its judgment against him to one of petty theft, (Pen. Code, 1181, subd. 6) placed him on probation for three years and fined him $250 as one of the conditions of probation.

[1] Appellant appeals from this modified judgment on the ground that he was convicted through the use of illegally-obtained evidence and that without such evidence, the testimony of his accomplice, McConnell, who identified him as the lookout, would have been legally insufficient within the meaning of Penal Code, section 1111. We are constrained to agree with appellant.

Penal Code, section 1111, requires that the testimony of an accomplice "be corroborated by such other evidence…