Montgomery v. State, 40 Ala. 684

Montgomery v. State

40 Ala. 684 | Ala. | 1867

EYED, J.

1. In allowing the witness Brooks to testify, under the facts and circumstances in evidence, the court committed no error. It was a matter of discretion, and, even if erroneous, is not revisable.— The State v. Brookshire, 2 Ala. 303; Sidgreaves v. Myatt, 22 Ala. 617; 1 Greenl. Ev. § 432; Starkie’s Ev. §§ 199, 200; McLean v. The State, 16 Ala. 672. That he was competent, see Code, § 2302.

2. At common law, an accomplice was a competent witness against the other parties engaged with him in the commission of an offense. But the courts cautioned the jury against finding a prisoner guilty of a felony on such evidence; though convictions have taken place thereon, and been sustained. In the progress of time, it seems that the judges instructed the juries, not to find a prisoner guilty of a felony, on the evidence of an accomplice,' unless it was corroborated. But learned judges have differed as to the extent and character of such corroboration necessary to authorize a conviction. Some of the judges have held it sufficient, if the witness is confirmed in any material part of his evidence ; while others have required confirmatory *688testimony as to the corpus delicti; and others, that there should be corroborating proof that the prisoner actually participated in .the offense.

■Under this contrariety of opinion, the legislature has adopted the following rule on the subject: “A conviction of felony can not be had on the testimony of an accomplice, unless corroborated by other evidence tending to connect the defendant with the commission of the offense; and such corroborative evidence, if it merely shows the commission of the offense, or the circumstances thereof, is not sufficient.” Under this rule, the evidence of an accomplice is sufficient to authorize a conviction, if corroborated by other evidence tending to connect 4he defendant with the commission of the offense; and is not .sufficient if only corroborated by evidence which shows the commission of the offense, or the circumstances thereof.

Neither all the evidence of the witness Brooks, nor all the evidence tending to connect the prisoner with the commission of the offense, is set out in the rec'ord. We can not, therefore, construe the charge asked by the evidence introduced on the trial. We must test its correctness by the statutory rule above set out.

The charge, refused by the court, inputting the legality of a conviction upon a corroboration of “every material part” of the evidence of the witness Brooks, went beyond the requirements of the statutory rule, or any rule recognized by the-common law; and the court therefore properly refused to give the charge.

3. A general verdict, on an indictment containing good and bad counts, is valid, for the verdict is referred to the good count. — State v. Jones, 5 Ala. 666; State v. Lassley. 7 Porter, 526; State v. Briley, 8 Porter, 472. The first count is clearly good; and no objection to the second count has :been pointed out by counsel, nor has any occurred to us. —Penal Code, 211, No. 40.

The, judgment is -affirmed.