CHAPTER XVI. CORROBORATION OF ACCOMPLICES. § 226. The Necessity of Corroboration. § 227. Its Sufficiency. § 228. Who are deemed Accomplices within the Rule. § 226. The Necessity of Corroboration. Accomplices being competent witnesses, as we have already seen,1 it would seem to follow, necessarily, that in case the jury credit their testimony, a conviction may be legally founded upon it, though it is not corroborated or confirmed by other evidence; for it is as much the province of the jury to determine upon the degree of credit to be given to the testimony of an accomplice, as to that of any other witness. And it may be said, that at common law, as laid down by numerous decisions, a conviction obtained upon the unsupported testimony of an accomplice is strictly legal.2 And such is the rule in many of the States, while in others (by statutory enactment) corroboration of the accomplice witness is a necessary prerequisite to conviction.4 1 Supra, §§ 21, 42, 43. 2 R. v. Atwood, Leach, C. C. 521; R. v. Durham, Id. 538; 1 Hale, P. C. 303; R. v. Dawber, 3 Stark. 34; R. v. Jarvis, 2 Moo. & R. 40; R. v. Hastings, 7 Car. & P. 152; R. v. Jones, 2 Campb. 132; s. c., 31 How. St. Tr. 325; R. v. Barnard, 1 Car. & P. 87. See supra, p. 312, note 3. 3 United States v. Neverson, 1 Mack. (D. C.) 152; United States v. Bicksler, Id. 341; State v. Stebbins, 29 Conn. 463; State v. Williamson, 42 Id. 261; United States v. Flemming, 18 Fed. Rep. (Ill.) 907; Collins v. People, 98 Ill. 584; s. c., 38 Am. Rep. 105; Johnson v. State, 65 Ind. 269; Ayers v. State, 88 Ind. 275; Com. v. Holmes, 127 Mass. 424; State v. Watson, 31 Mo. 361; Olive v. State, 11 Neb. 1; Territory of New Mexico r. Kinney, 1 West Coast Rep. 801; Stape v. People, 21 Hun (N. Y.) 399 (contra, under N. Y. Code, § 399, see infra); State v. Holland, 83 N. C. 624; s. c., 35 Am. Rep. 587. 4 Marler v. State, 67 Ala. 55; Lumpkin v. State, 68 Ala. 56; People v. Ames, 39 Cal. 403; People v. Melvane, Id. 614; People v. Cloonan, 50 Cal. 449; Johnson v. State, 4 Greene (Iowa) 65; Upton v. State, 5 Iowa, 465; Bowling . Commonwealth, 79 Ky. 604; Craft v. Commonwealth, 80 Ky. 349; People v. Courtney, 28 Hun (N. Y.) 589; People v. Ryland, Id. 568; Lopez r. State, 34 Tex. 133; Wright v. State, 43 Id. 170; Nourse v. State, 2 Tex. App. 304; Davis v. State, Id. 588; Roach . State, 4 Id. 46; Miller v. State, Id. 251; Powell v. State, 15 Id. 441; Dunn v. State, Id. 560; State v. Howard, 32 Vt. 380. But this rule of law, that a conviction may be founded upon the testimony of an avowed accomplice, and upon that alone-even in those jurisdictions where it obtains,—has been greatly modified in practice; and it has long been considered, as a general rule of practice, that the testimony of an accomplice ought to receive confirmation; and that, unless it be corroborated in some material part by unimpeachable evidence, the presiding judge may, in his discretion, advise the jury not to convict the prisoner upon it. It is considered that he ought to do so. And, as the jury will rarely disregard this advice from the bench, such convictions are extremely rare, and the substantial result is nearly the same as if the practice depended upon a rule of law, instead of being only the exercise of the discretion of the trial judge. If the judge refuses to give this advice, and a conviction resultsor if the jury convict the prisoner contrary to the advice of the judge in either case, the conviction will stand.2 There are some adjudications which hold that the rule requiring confirmation does not extend to cases of misdemeanors; 3 but such a distinction, for which there appears to be no sound reason, is not recognized in others. The rule, however, does not extend to civil cases, where an accomplice in a crime is a witness.5 § 227. Its Sufficiency. - Considerable difference of opinion is apparent, upon a review of the adjudications, as to the nature and extent of the corroboration necessary to authorize a conviction upon accomplice testimony. Some learned jurists have considered the confirmation of the witness' testimony upon any material part of the case, sufficient; on the theory that, if it be proven that he speaks the truth in one material 1 Rosc. Cr. Ev. 120; R. v. Barnard, 1 Car. & P. 87; R. v. Stubbs, 7 Cox, C. C. 48; United States v. Neverson, 1 Mack. (D. C.) 152; United States v. Bicksler, Id. 341; State v. Lowber, 1 Houst. (Del.) Cr. 324; Collins v. People, 98 Ill. 584; s. c., 38 Am. Rep. 105; Ray v. State, 1 Greene (Iowa) 316; Commonwealth v. Brooks, 9 Gray (Mass.) 299; Olive v. State, 11 Neb. 1; Ingalls v. State, 48 Wis. 647. 2 R. r. Stubbs, 7 Cox, C. C. 48; State v. Litchfield, 58 Me. 267; Car roll r. Com., 84 Pa. St. 107. But see Ray v. State, 1 Greene (Iowa) 316. 3 R. v. Jones, 31 How. St. Tr. 315; Truss v. State, 13 Lea (Tenn.) 311; Askea v. State, Ga. Sup. Ct. Oct. 14, 1885; United States v. Harris, 2 Bond (U. S.) 311. 4 State v. Davis, 38 Ark. 581. See also United States v. Smith, 2 Bond (U.S.) 323; United States v. One Distillery, Id. 399; Parsons v. State, 43 Ga. 197. 5 Kalikoff v. Zoehrlaut, 43 Wis. part of his testimony, the jury are authorized to believe other parts of his story, though unconfirmed; collateral facts, however, and irrelevant and immaterial matters cannot be proven to support the witness.2 Other courts have considered proof of the corpus delicti, alone, sufficient to corroborate the testimony of the accomplice; 3 but the true rule, supported by far the greater weight of judicial opinion, is that the confirmatory evidence must, in some degree at least, tend to connect the prisoner with the commission of the crime charged against him, and show his participation in it, and not merely go to prove the commission, by some one, of the offence in question, or the circumstances attending its commission. Thus, proof of facts merely casting upon the defendant a grave suspicion of guilt, are not sufficient for this purpose; but the corroboration may be by circumstantial 1 Montgomery v. State, 40 Ala. 684; State v. Schlagel, 19 Iowa, 169; Upton v. State, 5 Iowa, 465; State v. Hennessy, 55 Iowa, 299; Territory v. Corbett, 3 Mont. 50; Erb v. Commonwealth, 98 Pa. St. 338; State v. Howard, 32 Vt. 380; People v. Lee, 2 Utah, 441. Compare State v. Allen, 57 Iowa, 431. 2 Marler v. State, 68 Ala. 580; State v. Odell, 8 Oreg. 30; Com. v. Bosworth, 22 Pick. (Mass.) 397400, explained in Com. v. Holmes, 127 Mass. 424; State v. Graff, 47 Iowa, 384. See Despard's Case, 28 How. St. Tr. 488; Joy on Accomp. pp. 98, 99; Harper v. State, 11 Tex. App. 1. 3 R. v. Atwood, Leach, C. C. 521. 4 Marler v. State, 67 Ala. 55; People v. Garnett, 29 Cal. 622; People v. Ames, 39 Cal. 403; People v. Melvane, Id. 614; People v. Cloonan, 50 Cal. 449; Ray v. State, 1 Greene (Iowa) 316; State v. Willis, 9 Iowa, 582; State v. McKenzie, 18 Id. 573; State v. Thornton, 26 Iowa, 79; Com. v. Holmes, 127 Mass. 424; Territory of New Mexico v. Kinney, 1 West Coast Rep. 801; People v. Courtney, 28 Hun (N. Y.) 589; People v. Ryland, Id. 568; Watson . Commonwealth, 95 Pa. St. 418; Wright v. State, 43 Tex. 170; Nourse v. State, 2 Tex. App. 304; Davis v. State, Id. 588; Jones v. State, 7 Id. 457; Roach v. 5 McCalla v. State, 66 Ga. 346. See also Simms v. State, 8 Tex. App. 230. In State v. Kellerman (14 Kan. 135), the accused was charged with stealing a horse. The owner testified that it was taken out of his pasture during the night time, and the accomplice testified that an arrangement was made between the defendant and himself for stealing and selling a horse, and in pursuance thereof, on the night that this horse was taken out of the pasture it was brought by defendant to witness and by him taken to a neighboring town and sold, and produced a writing admitted by defendant to have been written and signed by himself, certifying that the witness was duly "authorized to sell” this horse, described in the writing as "my horse." This writing was held sufficient corroborating testimony to sustain a conviction. In Com. v. Drake (124 Mass. 21), defendant being charged with procuring, at her own house, an abortion on S. denied that S. and the accomplice had ever visited the house. Evidence that the latter had always lived in another evidence, if sufficiently strong and direct, as well as by the testimony of witnesses.1 In case there are two or more defendants on trial, corroboration of the testimony of the accomplice criminating one of them, will not sustain his testimony against the other defendants, so as to authorize their conviction. So, also, one accomplice cannot confirm the testimony of another, so as to predicate a conviction upon it;3 but the confession or admission of the principal defendant, connecting himself with the crime, will be sufficient, and no further confirmation of the accomplice will be necessary. In no case need the confirmatory evidence, standing alone, be sufficient in itself to warrant a conviction, or even to make out a prima facie case against the prisoner.6 § 228. Who are deemed Accomplices within the Rule.—In town; that at the time alleged S. and the accomplice had been left near the house by a hackman; and that the accomplice's testimony describing its interior was accurate, was held sufficient to corroborate the accomplice. In another case, it was held that testimony of a witness that he saw defendant at his home, and in the vicinity of the place where the crime was committed, is corroborative of the testimony of an accomplice as to defendant's guilt, when the defence relied on is an alibi. Territory of New Mexico v. Kinney, 1 West Coast Rep. 801. Compare State v. Odell, 8 Oreg. 30. So, any act or declaration of the accomplice which goes to show that he and the prisoner committed the crime, may be proved to corroborate the accomplice. State v. Ford, 3 Strobh. (S. C.) 517 n. On a trial for bribery, an accomplice testified that he had bribed defendant by giving him a check on a certain bank, payable to cash or bearer, which had afterwards been returned to witness by the bank; and the prosecution was permitted to corroborate the witness by showing by the books of the bank, a credit to defendant for a like amount deposited by check two days after the alleged bribery. State v. Smalls, 11 So. Car. 262. So, in larceny, possession of the stolen goods by defendant, if clearly proved, will suffice to confirm the testimony of the accomplice that he and the accused stole them. Jernigan v. State, 10 Tex. App. 546. See also Smith v. State, 59 Ala. 104; Ford v. State, 70 Ga. 722. 1 State v. Stanley, 48 Iowa, 221. See also, on the sufficiency of the confirming proof, Hughes v. State, 58 Miss. 355; Wyoming County v. Bardwell, 84 Pa. St. 104; Hester v. Commonwealth, 85 Id. 139; Kuichelow v. State, 5 Humph. (Tenn.) 9; Gillian v. State, 3 Tex. App. 132. 2 R. v. Moores, 7 Car. & P. 270; R. v. Wells, M. & M. 326; R. v. Wilkes, 7 Car. & P. 271. But see contra, King v. Jones, 2 Campb. 132; s. c., 31 How. St. Tr. 325; R. v. Dawber, 3 Stark. 34; Birkett's Case, Russ. & Ry. C. C. 252; King v. Hastings, 7 Car. & P. 152. 3 Johnson v. State, 4 Greene (Iowa) 65; Gonzales v. State, 9 Tex. App. 374. 4 People v. Cleveland, 49 Cal. 578; People v. Zimmerman (Cal.), 3 West Coast Rep. 59; Partee r. State, 67 Ga. 570; Territory v. Mahaffey, 3 Mont. 112. Lumpkin v. State, 68 Ala. 56; Hoyle v. State, 4 Tex. App. 239. 6 State v. Lawlor, 28 Minn. 216. Compare Jackson v. State, 4 Tex. App. 293; Jones v. State, Id. 529. some instances a witness apparently occupying the position of an accomplice of the prisoner on trial, is not in reality implicated as such, either because he is a several offender, such as a principal in the second degree,1 or because his apparent connection with the crime was for the purpose of detecting the wrong-doer and bringing him to punishment. It is the latter class with which we are now concerned spies, informers, and detectives, who cannot, as we have already seen,2 be said to be accomplices, so as to need corroboration.3 1 R. v. 2 Supra, § 189, and cases there cited. 3 See also People v. Farrell, 30 Cal. 316; Harris v. State, 7 Lea (Tenn.) 124. It has been held that the purchaser of liquor unlawfully sold (People v. Smith, 28 Hun (N. Y.) 626; s. c., 92 N. Y. 665), and the woman on whom an abortion was produced (Com. v. Boynton, 116 Mass. 343) are not accomplices; while a woman with whom incest was committed (Freeman v. State, 11 Tex. App. 92; s. c., 40 Am. Rep. 787), and the partner of a gamester who advanced him money to bet (English v. State, 35 Ala. 428), were held to be accomplices, and corroboration necessary. As to the proof necessary to impart to a witness the character of an accomplice, see Com. v. Ford, 111 Mass. 394; Com. v. Glover, Id. 395; Rhodes v. State, 11 Tex. App. 563. |