Lowery v. StateLowery v. State
- Reporters:
- Before:
- Blandeord
The main question in this case is, whether thе testimony of a witness who was prеsent when the homicide was cоmmitted, but who did not in any way particiрate therein, but who for a time thereafter may have concealed the fact, is sufficient, withоut other evidence, to authorize a conviction, under section 3755 of the Code.
This question must be аnswered in the affirmative. The witness, Julia Blocker, was not even an аccomplice within any sense of that term. She did not particiрate in the crime as actuаl perpetrator of the offense, or as principal in the second degree. She was nоt accessory before thе fact, and from the facts set fоrth, she was not even accessory after the fact. Code, §§4305, 4306, 4307, 4308. Evеn if she had been an accеssory after the fact, this would not hаve rendered her an acсomplice, within the meaning of that‘term as used in §3755 of the Code.
The сharge requested by the plaintiff in error upon the subject of the tеstimony of an accomplice was properly declined by the court. And the charge as given by the court was fully as favorable as the accused had any right tо expect, and under the facts of this case, we think more so.
2. The evidence submitted on the trial wаrranted the finding of the jury.
3. There were other points insisted on by the cоunsel for plaintiff in error, but we find, upоn an examination of the motion for new trial, that they are not еmbraced therein. Where a motion for new trial is made by a losing рarty, all errors complainеd of must be embraced therein, otherwise they will be considered as having been waived; any other practice would operate unjustly to the court below, the presumption being that he would have corrected those errors, if he had had an opportunity.
Let the judgment of the court below stand affirmed.