37 Ark. 67 | Ark. | 1881
The motion in arrest of judgment was property overruled.
The guilt of Helphrey is averred, and the facts and the circumstances of the murder are stated in the indictment with the same directness and certainty required to charge him with the commission of it, if he alone had been concerned in the perpetration of it; and it charges with like directness and certainty, the appellant and Holland with having, before the commission of the crimé, feloniously and with malice aforethought incited, procured, aided, counseled, hired and commanded him to do and commit it, and nothing more ■was or could be necessary to charge them as accessories. 2 Bish. Orim. Proced., Secs. 7 — 11.
Helphrey was a competent witness for the State. It isa well settled rule of the common law that an accomplice who is not indicted, or is separately indicted, and though he 'been convicted, if sentence has not been passed upon him, is ■a eompetentwitness. 1 Bish. Crim. Pro., Secs. 1166, 1167 ; 1 Whar. Crim. Law, 783; 1 Green Ev. Sec., 379. And it is expressly provided by section 2479, Gantt’s Digest, “ that in all cases where two or more persons are jointly or otherwise concerned in the commission of any crime or misdemeanor, either of such persons may be sworn as a witness in relation to such crime or misdemeanor, but the testimony .given by such witness shall in no' instance be used against him in any criminal prosecution for the same offense.” The State v. Quarles 13, Ark. 307; Cossart v. The State 14, Ark., 539; Pleasant v. The State 15, Ark. 649.
And we can see no reason why he should not have been permitted to state when testifying, that he had previously made a confession of the crime to the Prosecuting Attorney, in which he had told him of the appellant’s, and Holland’s complicity in it.
Mr. Wharton says: “The question whether a client can be compelled to disclose his confidential communications to-his legal adviser draws peculiar interest from the Statutes enabling parties to be called as witnesses bjr their opponents,” and very justly remarks : “ It is obvious the guard against the disclosure of such communications by counsel would be a mockery, if the client could be compelled to disclose that as to which counsel’s lips are sealed. It would be absurd to protect, by solemn sanctions, professional communications when the lawyer is examined, and to leave them unprotected at the examination of the client.” 1 Whart. on Ev., Sec. 583.
And he was very properly told by the Court that he was: not required to disclose any information he had receiyed from his counsel.
The testimony of Helphrey was not sufficient for that purpose. “A conviction can not be had,” the statute says, “upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the commission of the offense, and the corroboration is not sufficient if it merely shows that the offense was ■committed and the circumstances thereof.” Section 1932 Gantt's Digest.
Without evidence, therefore, connecting Holland with the murder, corroborative of that of Iielphrey, the letter, however irrefragable in itself as evidence of his complicity, was of no higher grade than hearsay. And, as there was no such proof made, either before or after its introduction, it was not competent evidence.
To the other, the twenty-third, we are unable to see any objection, and none has been insisted upon or suggested here.
The jury were told by the Court, in the twenty-first instruction given, that they could not convict the defendant, upon the testimony of Iielphrey, unless it was corroborated by other evidence tending to connect the defendant with the commission of the murder, and that the corroboration was-not sufficient if it merely showed that it was committed, and the circumstance of it, the Court so in effect telling them that the law impeached him, and they must have known, from the atrocity of the crime he had committed that he was not a creditable witness. It could not go further and tell them that some particular motive or inducement might-have influenced his testimony, and' as to which there was no. evidence ; and if the law be as stated in the seventh instruction asked by the defendant, but as to which we do not. deem it necessary or proper to express an opinion, it was-properly rejected,
Reversed, and-remanded for a new tidal.