People v. Eckert

16 Cal. 110 | Cal. | 1860

Baldwin, J. delivered the opinion of the Court

Cope, J. concurring.

It is conceded by the Attorney General, and rightly, that the judgment must be reversed.

1. The defendant was indicted for grand larceny. The Court refused to give the following instruction: “ Although the jury may be satisfied that the offense of grand larceny has been committed, yet if they find that the witness, McBillingsly, was an accomplice to the offense, they cannot find the defendant guilty, unless that witness be corroborated by such other evidence as shaU tend to connect the defendant with the commission of the offense. And such corroboration wiU be insufficient, if it merely shows the commission of the offense, or the circumstances of such commission, but they must connect the defendant with the taking.” This refusal was erroneous. (Regina v. Dyke, 34 Eng. C. L. R. 381.) It is held, by this and other cases cited by the appellant’s counsel, that the corroborating evidence to the statements of the accomphce must connect the prisoner with the offense charged.

2. The Court also erred in giving the jury this instruction: “ That though the witness, McBillingsly, was impeached, if his testimony was corroborated by the testimony of witnesses unimpeached, they were bound to believe his testimony.”

The credibility of any and all statements of a witness is a matter for the jury, and the Court should not interfere with them province in this respect. It does not follow because a witness impeached, or not impeached, is supported, in some degree, or in some portions of his evidence, by other witnesses, that the jury are bound, as matter of law, to believe everything he says. Many things may characterize a cause or the testimony of a witness, which deny or impair credit to his assertions ; and the jury should be left free to pass upon all the circumstances and considerations in connection with his testimony, and assign to his statements their true weight and value as proof. A witness may be supported in a particular part of his testimony, and thus supported, the jury may believe that part, while, in other respects, they may think him altogether incredible.

3. An exception is taken to the fact that one of the Justices composing the Court of Sessions retired before the termination of the trial, and another Justice, not present during the previous stages of it, was called in at or towards the close of it, and participated in the proceeding. This certainly was very irregular. The members of the Court, who act as such when the case is developed, and who, therefore, are acquainted with the history and facts of it, should continue to act until the close. Otherwise it is apparent that there is not much difference between a Court composed of only two members and a Court composed of three, one of whom is ignorant of the matters before transpiring. Without affirming that this irregularity is, of itself, sufficient to reverse a conviction otherwise regular, we take occasion to express our disapproval of the practice, and suggest the danger to which it exposes the action of the Court.

Judgment reversed and cause remanded for a new trial.