It is submitted that the verdict of the jury convicting defendant appellant of the crime of robbery in the first degree should be affirmed. The facts detailing the planning and execution of the robbery down to the minutest detail, including the part which each participant took in effecting the robbery and the escape, have been set forth in the testimony of an accomplice. Up to within a comparatively recent time, and prior to the enactment of section 399 of the Code of Criminal Procedure, a jury, if satisfied of the truth of the statement of an accomplice, could convict on his testimony alone. (People v.Costello, 1 Den. 83; People v. Dyle, 21 N.Y. 578; Dunn v.People, 29 N.Y. 523; Linsday v. People, 63 N.Y. 143, 154.) It was at that time that the courts were accustomed to charge the jury to scrutinize the testimony of an accomplice with caution. Thereafter, by statute, the State of New York required that there be some independent evidence to connect the defendant with the commission of the crime. (Code Crim. Proc. § 399.) We have held that the corroborative evidence need not show the commission of the crime; it need not even show that the defendant was connected with the commission of the crime. (People v. Mayhew, 150 N.Y. 346,353; People v. Swersky, 216 N.Y. 471, 478, 480; People v. Cohen, 223 N.Y. 406, 426; People v. Dixon, 231 N.Y. 111,116; People v. Reddy, 261 N.Y. 479, 484.) Such evidence is sufficient if it tends to connect the defendant with the commission of the crime. Corroboration is not restricted to any particular point. It may vary in its nature according to the evidence in the particular case. Matters in themselves of seeming indifference or trifling evidence may have a tendency to furnish the necessary connection between the defendant and the crime. *Page 468 (People v. Becker, 215 N.Y. 126, 139, 140; People v.Dixon, 231 N.Y. 111; People v. Reddy, 261 N.Y. 479, 484.)
The sole question of law upon which it is proposed to reverse and dismiss the indictment is that the trial court should have charged the jury that as a matter of law the testimony concerning the following incidents did not constitute any evidence which the jury might find tended to connect the defendant with the commission of the crime.
The first incident relates to the presence of this defendant with others of the conspirators on a trial trip of the speedboat utilized in the getaway with the bags of money after the robbery. The presence of this defendant, in company with others of the conspirators, on the trial trip of the speedboat to test its availability, was detailed by an independent witness, namely, the mechanic who had reconditioned the speedboat. The defendant denied his presence on the speedboat. His presence on the boat, therefore, became a question of fact for the jury, and although the Appellate Division divided as to the availability of the evidence detailing the second incident, there was unanimous agreement that the evidence concerning the presence on the speedboat of this defendant with others of the conspirators, to test the availability of the boat, "assumed a sinister significance and was sufficient corroboratory evidence. (People v. Dietsch, 237 N.Y. 300; People v. Dixon, 231 id. 111, 117; People v. Crumb, 272 id. 348, 356; People v. Mayhew, 150 id. 346, 353.)" (259 App. Div. 738.) Surely after the evidence set forth in the majority opinion of the details of this crime, a court could not say as a matter of law that the presence of this defendant with others of the conspirators passing on the availability of the speedboat used in the getaway, was not some independent evidence which tended to connect this defendant with the commission of the crime.
We come then to the second incident, which concerns the payment of $100 by the father of this defendant to his son-in-law, to be turned over to Robert Stewart, the brother *Page 469 of Archie Stewart. In connection with this incident it is conceded that, pursuant to the threats to the defendant by Archie Stewart, to induce the payment of some money, the father and mother of defendant visited him while he was in prison, and talked with him concerning the advisability of making some payment on account of this debt which Archie Stewart claimed of the defendant. The defendant concedes the visit of the father and mother, the talk concerning the advisability of payment, and thereafter the payment by the father to his son-in-law, who paid the money to the father of the accomplice. After these conceded facts the defendant testified that he had told the father not to make the payment. Since the defendant was an interested witness, the jury were at liberty to accept that part of his testimony wherein he admits all the above conceded facts, and to disbelieve his self-serving declarations that he advised his father against making the payment. (People v. Johnson, 185 N.Y. 219, 225;People v. Demasco, 240 N.Y. 170.) As to this incident also it is submitted that the trial court could not say as a matter of law that there was not some evidence here, however slight, which, if believed by the jury, tended to connect the defendant with the commission of the crime.
It is submitted, therefore, that evidence concerning both the above incidents was property admitted, and that there was no error on either of these grounds.
Since the lack of sufficient corroborative evidence is urged as the sole basis for setting aside the verdict of the jury and ordering a new trial, it follows that the judgment appealed from should be affirmed.
LEHMAN, Ch. J., LOUGHRAN, SEARS, LEWIS and CONWAY, JJ., concur with RIPPEY, J.; FINCH, J., dissents in opinion.
Judgments reversed, etc. *Page 470