80 Ky. 349 | Ky. Ct. App. | 1882
delivered the opinion op the court.
Appellant was indicted on the charge of murder, tried, ■ convicted, and sentenced to death. The conviction appears ■■to have been had principally upon the evidence of an accomplice, and the only question we need consider, precluding -no other, is whether the court properly instructed the jury.
Sections 241 and 242 of the Criminal Code are as follows:
"A conviction cannot be had upon the testimony of an -accomplice, unless corroborated by other evidence tending ’•to connect the .defendant with the commission of the offense;
“In all cases where, by law, two witnesses, or one wit-mess with corroborating circumstances, are requisite to warrant a conviction, if the requisition be not fulfilled, the -court shall instruct the jury to render a verdict of acquittal, by which instruction they are bound.”
The court properly instructed the jury as to the law of homicide in ordinary cases, but failed to instruct as to the weight that should be given to the evidence of the accomplice.
In general, where evidence is competent to go to the jury, it is their exclusive province to determine to what consideration it is entitled, to the extent, even, of disregarding it entirely.’ But the sections of the Criminal Code ■quoted appear to make an exception in the case of the testimony of an accomplice. When there are no corroborating circumstances it is the duty of the court to instruct the jury to acquit, thereby determining, as a matter of law, 'that, standing alone, the evidence given by an accomplice is not entitled to any weight, and shall not be considered by the jury. If there is evidence tending to support the statements made by the accomplice, such evidence is competent, and should be permitted to go to the jury for their consideration, as in ordinary cases; but the permission that such evidence may go to the jury is not a determination by the •court that it is credible, or that it, in fact, establishes the existence of corroborating circumstances, and the fact of the admission of such evidence does not add to nor detract from the positive declaration of the Code that no conviction •shall be had upon the uncorroborated testimony of an accomplice. Before the jury can consider the evidence of an
Judgment reversed, and cause remanded, with direction for a new trial.