Convicting the Innocent: Errors of Criminal Justice (1932)
by Edwin M. Borchard
Case #23

Harvey Lesher, Mike Garvey, Phil Rohan


Roberta Scriver could not understand why Mr. Miles, the proprietor of the drug store, did not wait upon customers. She rapped on the counter, and there was no response. She yoohooed, and there was no reply. As she was starting, indignantly, to leave empty-handed, the father of the druggist arrived. He was as surprised as she that no one was caring for the store. Father Miles looked around, called, then entered the rear room. He was met by the sight of his son lying on the floor, unconscious, bleeding from head wounds. A call for an ambulance was dispatched at once, and the police were notified.

The ambulance hurried the unconscious man to the hospital, where, despite expert care, he died within the hour.

This was on the first of November, 1927. Mr. Miles's drug store was located at the corner of Fourth Avenue and Jefferson Street, Los Angeles, California.

The autopsy surgeon, Dr. A. F. Wagner, reported that he had found an extensive contusion behind the left ear, and underneath it a subdural hemorrhage covering the entire surface of the brain, extending downward into the spinal cord. This might have been caused either with a blunt instrument or by a fall. He also found an abrasion on the right side of the forehead, and a contusion over the left eye.

The police investigators learned that Miss Scriver had reached the store shortly after 10.15 o'clock in the evening, and that as she approached the store she had seen someone come out of the store on a "kind of a trot," throw a bundle into the rear seat of a Hudson, in which two men were sitting, and drive off hurriedly. They learned from Father Miles that he had examined the store cash register and that, while the sales-register tape showed the receipt of thirty-six dollars, there was not a single cent in the drawer. Father Miles also said that when he found his son, he was bound hand and foot with wire. The most complete information came from Eddie Yates, the ten-year-old son of a dentist who lived in the neighborhood. He told the investigators that he was passing the drug store on his way home from a moving-picture show at about ten o'clock when he saw a Hudson car draw up, three men get out, and enter the store. One of these asked Mr. Miles for a cigar, and wanted it free. Miles refused, and when he retired to the room in the rear of the store, the men followed him. In about five minutes they came out hurriedly, got into the car, tossing a bag into the rear seat, and drove away.

The problem of the police was then to find the three men. The ten-year-old youngster thought he could recognize them if he were to see them again. Hence the natural thing for the police to do was to have Eddie attend the periodical "show- up" of criminal suspects. At the fourth "show-up" he attended, about a month later, Eddie pointed out two men who had been in the store, and a little later he picked out the third. These men had all been arrested on other charges, ranging from vagrancy to robbery. They were Harvey Lesher, Mike Garvey, and Phil Rohan. They denied any knowledge of the crime on Jefferson Street. This, however, did not raise any doubt in the mind of little Eddie Yates. He was positive in his identification of them.

With the evidence of only a child connecting Lesher, Garvey, and Rohan with the murder and robbery in the Miles drug store, the District Attorney's Office was considering whether or not to submit the case to the Grand Jury, when Howard C. Walton of Los Angeles came forward with a story of events which made the submission imperative. He said that on the seventh or eighth of November, the three defendants were at his home drinking bootleg liquor and wine. Lesher, he said, became so intoxicated that he had to be placed in bed. About 2.30 the next morning, when Lesher was coming out of his drunken stupor, he said, "Why did I kill him?" Later, when the two were alone, Walton asked Lesher what he meant by that, and Lesher replied that he had done the "Jefferson Street job," and that he had killed Miles because he had recognized him after being knocked down.

As in all cases of this kind, some effort was made to trace the Hudson automobile. It was learned that a Mr. Stopp owned a light-green Hudson sedan which had been stolen from a garage on Mariposa Avenue three days before the tragedy on Jefferson Street occurred. One of the garage attendants said that on the day the Hudson was stolen, he had seen Lesher around the garage. This was all that could be learned about a stolen Hudson car or the possible connection of the suspected men with it.

On December 20, 1927, the Grand Jury indicted each one of the prisoners on the separate counts of murder and burglary. Upon arraignment all three pleaded not guilty and the cases came on for trial January 9, 1928, before Hon. William Tell Aggeler of the Superior Court of Los Angeles County. The state was represented by Deputy District Attorney Tom Menzies, and the defense by Mr. S. S. Hahn of Los Angeles. Each defendant took the stand in his own defense, denying any knowledge of the crime and testifying that they were all three at the home of Lesher the whole of the evening in question, more than three miles away from the Miles drug store. This alibi was supported by the testimony of others, friends and relatives. The conflict between the testimony given by the witnesses for the prosecution, who told their stories as they had been reported to the police, and the witnesses for the defense, had to be decided by the jury. They found against the defendants, and on February 11, 1928, a verdict of guilty on both the murder and burglary counts was rendered against each of the defendants. A motion for a new trial was denied, and the case appealed.

At this stage of the proceedings, Mr. William T. Kendrick and Mr. William T. Kendrick, Jr., of Los Angeles, became the attorneys for the defendants.

The Court of Appeals found no reversible error, and each man had to face the execution of the sentence of the trial court – imprisonment for life in the San Quentin Penitentiary.

The Messrs. Kendrick were untiring in their continued efforts to prove the innocence of these men, in which they so thoroughly believed. The appeals of the prisoners for further investigation of the case were so earnest that the District Attorney's Office renewed its inquiries. The case was investigated by a Los Angeles County Grand Jury whose foreman was Hon. John C. Porter, later Mayor of Los Angeles. The result was that a great deal of new evidence was uncovered which tended to discredit the evidence submitted by the prosecution at the trial. It was concluded that Eddie Yates did not arrive at the drug store until about the time the ambulance came and that his testimony was the honest romancing of a child. Walton, an admitted bootlegger, repudiated the testimony he had given at the trial, and acknowledged that he was thoroughly intoxicated himself the evening the three men had been at his home. He said that he had first told the police the confession story to cause the arrest of Garvey and Lesher in retaliation for their rumored intention to "shake him down" as a bootlegger.

Other new evidence corroborated the alibis sworn to by the defendants. Still further evidence raised very serious doubts whether Miles was really tied when he was found unconscious in his store, and whether money had been taken – in this way leading to a conviction on the part of the investigators that quite likely there had been no murder or robbery at all, but that Miles had suffered a fainting spell and in falling had received his injuries.

These developments were submitted to Governor Young, and by him referred to the Advisory Pardon Board of California. An independent investigation was made by this board, and a carefully prepared report submitted to the Governor by its chairman, Lieutenant-Governor Carnahan. The conclusion reached was that the men were entirely innocent of the crime charged, and that they had been erroneously convicted. Immediate pardons for all three were recommended. Upon considering the newly discovered evidence, Judge W. T. Aggeler (the trial judge), Mr. Asa Keyes (the District Attorney at the time of the conviction), Buron Fitts (the District Attorney at the time of the investigations), Mayor John C. Porter of Los Angeles, and the Rev. Gustav A. Briegleib (pastor of Eddie Yates, who started a personal investigation of the case immediately after the finding of Miles's body) – all concurred in the conclusion that the defendants were innocent, and in recommending that pardons be granted.

The family of Eddie Yates naturally took a keen interest in all of these investigations. The highly commendable position taken by them in this delicate situation was clearly stated in a letter from the father, Dr. Yates, to the Governor:


I am E. W. Yates, the father of Eddie Yates, that testified in the case of the State against Harvey Lesher, Mike Garvey, and Phil Rohan.

I am informed that these men are being held entirely on the evidence of my boy. I know the boy did the best that he could, and sincerely believes these men were guilty, and has never changed his opinion to this day. But he having never seen these men before, and seeing them at night, under the circumstances there is great possibility of a mistaken identity. So, if his is the only evidence it does not look to me that it would be just or fair to hold them.

I am asking you under these circumstances to consider favorably their release.

Very respectfully yours,
[Signed] E. W. YATES

Governor Young had publicly announced that as a policy, he did not favor the granting of pardons except after suitable parole periods, unless "a very definite presumption of innocence" could be established. In this case he demanded "certainty" of innocence. He found such certainty to exist, and granted the prisoners full pardons on June 20, 1930. They had served about two and a half years of a life sentence.


Messrs. Kendrick thereupon made an application to the California Board of Control, the first of its kind, for a maximum of $5,000 indemnity for each of the three innocent men, under the Act of May 24, 1913 (chapter 165, Statutes of 1913). The Board rejected the claim on the ground, as reported by the Sacramento Union of December 18, 1930, purporting to quote Mr. Ray L. Riley, State Controller, "that the verdict of guilty was returned by a jury on the basis of evidence presented to the court by the child," and. hence presumably the prisoners were not convicted erroneously. Such a construction of the word "erroneous" is a travesty on the purpose of the statute.

A rehearing was granted by the full Board in the spring of 1931, and on April 30, 1931, the Board handed down an opinion and recommendation to the Legislature, approved by Governor Rolph, denying the claims of Lesher and Garvey, but allowing Rohan $1,692. In the cases of Lesher and Garvey, the Board maintained that they were men of unsavory character, had gambled for large sums, had possessed and sold intoxicating liquors, and had been "charged" with other crimes, for which they had never been tried. Although both had trades, the Board claims that they were not employed at an honest occupation for some months prior to the Miles death. While satisfied that Rohan was entirely innocent, the Board also asserts that it was "unable to determine to its satisfaction whether Harvey Lesher or Mike Garvey did or did not commit the crime of which they were convicted," thus ostensibly reversing the positive finding of innocence by the State Board of Pardons, Governor Young, and other state officials. The Board also adds that it was "not satisfied that Harvey Lesher and Mike Garvey did not by acts or omissions, negligently bring about their arrests and convictions," though it gives no evidence to support this important conclusion. The Board evidently felt that Lesher and Garvey had such poor reputations that they ought not to be compensated by the state for their convictions, notwithstanding the Governor's finding. Unless the Board could show in what definite way Lesher and Garvey had contributed to their own conviction for the murder of Miles, it would seem that its conclusion denying an indemnity is unsustainable. The suggestion that Lesher and Garvey suffered no pecuniary injury for two and a half years' imprisonment seems a mockery. There is nothing in the statute which requires the Board to deny justice to men of questionable character, if (as in this case was established by the Advisory Board of Pardons and by Governor Young) they had not committed the crime of which they were convicted. By throwing doubt upon and inferentially reversing all the other authorities of the state which had found Lesher and Garvey absolutely innocent of the Miles murder, the Board has done Lesher and Garvey an unnecessary injury.


This is another case of conviction on what was ostensibly mistaken identity, but proved to be romancing, apparently combined with some perjury. There was nothing but the testimony of the movie-inspired boy of ten and the false tes­timony of Walton to connect the three men with the Miles case. That two of them were men of deficient character doubtless helped to convict them. There was commendable activity on the part of the authorities in reopening the case and then demonstrating that the men were innocent. The State Board of Control gave an exceptionally narrow construction to the California indemnity statute, which gives rise to the belief that in an amended statute it should be provided that the application for indemnity should be made not to a financial administrative body, but to a judicial or quasi-judicial body, like a Court of Claims.


1. Certified copy of the record in case No. 32514 – People v. Harvey Lesher, Mike Garvey, and Phil Rohan, Superior Court, Los Angeles County, California.

2. The People, Respondent, v. Mike Garvey et al., Appellants, 93 California Appellate Reports, pp. 497-504.

3. Photostatic copy of the original pardon, signed by Gov. C. C. Young on June 20, 1930.

4. Petition for rehearing, signed by Wm. T. Kendrick and W. T. Kendrick, Jr., December, 1930. 22 p.

5. Opinion and Recommendation of State Board of Control, April 27, 1931, approved by the Governor, April 30, 1931.