Hicks v. State, 126 Tenn. 359

Hicks v. State

126 Tenn. 359 | Tenn. | 1912

Mr. Chief Justice Shields

delivered the opinion of the Court.

The plaintiff in error was convicted of the crime of burglary, and sentenced to confinement in the State prison for a term of three years. The error here assigned is that the evidence preponderates against the verdict, and in favor of the innocence of the plaintiff in error. The precise contention is that Charles Dulaney, the witness for the State, who connects plaintiff in error with the commission of the crime, was an accomplice, and that a conviction cannot be sustained upon his uncorroborated testimony.

The burglary is proven by the prosecutor, A. N. Sellers, who testified that his storehouse was broken open in the nighttime, and certain articles, aggregating $25 in value, were removed and stolen. Charles Dulaney, a young man twenty-two years of age, younger than the plaintiff in error and his brother-in-law, testified to the connection of the plaintiff in error with the *362offense. He said that on the night of the bnrglary the plaintiff in error requested him to* go with him to the house of a Mr. Naive; that when they came to the storehouse of the prosecutor, the plaintiff in error stopped and stated his intention to break open the house and take some of the goods there stored; that he urged plaintiff in error not to do this, saying that he would go on and leave him; but he persisted in his intention, and required witness to remain with him by threats of violence. Witness testified that he then went across the road from the store, and there saw plaintiff in error break open a window and take from the house the articles which the prosecutor testified had been stolen, and carry them away in a sack. Witness further said, that he did not know that the plaintiff in error intended to commit the burglary until he stopped at the store, and that he in no way participated in the crime, or received any of the property stolen, and that his presence was without any intention to aid the plaintiff in error and involuntary. The plaintiff in error, as a witness for himself, denied the truth of the testimony of Dulaney and all knowledge of the burglary. Witnesses who knew the character of the plaintiff in error and Dulaney impeached the former and sustained the latter. There can be no conviction of crime upon the uncorroborated testimony of an accomplice, and the corroboration must be, not only as to the commission of the crime, but as to the identity of the defendant as the party who committed it. The mere presence of one when a crime is committed does not make him an accomplice. *363There must be evidence that the party, claimed to be an accomplice, knowingly, voluntarily, and with common intent united with the principal offender in the commission of the crime. Harris v. State, 7 Lea, 124; Parham v. State, 10 Lea, 498; Clapp v. State, 94 Tenn., 194, 30 S. W., 214.

Where the witness, claimed to be an accomplice, confesses in his testimony a criminal participation in the offense, the court may instruct the jury that he is an accomplice, and that no conviction can be had without corroboration of his testimony. Where, however, the witness denies all criminal connection with the crime' committed, whether he be an accomplice or not is a question of fact, to be submitted to the jury along with other. issues of fact, under proper instructions from the court; the burden being upon the party invoking the rule to prove by a preponderance of the evidence the guilty connection of the witness with the crime. If the jury find the witness to be an accomplice, they will apply the rule requiring corroboration; but, if the jury fail to so find, his evidence will be given the same weight as that of other witnesses. Wigmore on Evidence, vol. 3, sec. 2060c; Underhill on Criminal Evidence, sec. 69; Wharton’s Criminal Evidence (9th Ed.), sec. 440.

The question of whether or not the witness Dulaney was an accomplice in this case was submitted by the trial judge to the jury under proper instructions, and by the verdict of guilty it was found that he had no guilty connection with the crime, and the preponderance of the evidence sustains this finding. Certainly, it is not *364against it. This destroys the contention of tbe plaintiff in error. In addition to this, there is, we think, testimony in the case which tends to corroborate the witness.

There is no error in the judgment, and it is affirmed.