Smith v. State

| Wyo. | Feb 11, 1902

Corn, Justice.

The defendant, Lewis Smith, was convicted of the larceny of a steer. The case for the prosecution depended upon the testimony of an accomplice, Thomas Black, and it is claimed there was error in the charge of the court touching the duty of the jury in considering his testimony.

The court, at the request of the State, gave to the jury four instructions upon the subj ect, as follows:

“1. It is claimed on the part of the defense that Thomas Black, one of the State’s witnesses, is an accomplice in the crime; therefore, the court will instruct you upon the subject of an accomplice. An accomplice is defined as one who is associated with others in the commission of a crime, all being principals, and the test in general to determine whether a witness is or is not an accomplice is the inquiry; could the .witness himself have been indicted for the offense either as principal or as accessory? The question of whether a witness is an accomplice or not is for the jury to determine.

“2. Should you find the said Thomas Black to be an accomplice in the crime, and also find that his testimony is corroborated by some other evidence which tends to confirm His testimony upon a point material to the issue, in the sense that it tends to prove the guilt of the defendant, and if it appears that the said Thomas Black has testified to the truth in some material particular, the jury may infer that he has in others.

“3. The credibility of an accomplice is a question for the jury, as is that of any other witness, and you have a perfect •right to accept it or reject it, in part or in toto. Such evidence, however, coming as it does from a polluted source, should be received with great caution and closely examined. It is proper for you to consider whether his testimony is prompted by a promise of leniency or a hope of reward, or as a means of obtaining revenge for a supposed injury. Yet, if, notwithstanding any of these motives, you find there were such, you believe he speaks the truth, and such evidence is corroborated upon any material fact, -you should find the defendant guilty.

“4. You are instructed that the witness, Black, is in law what is known as an accomplice. You are further instructed that an accomplice’s testimony should be received with care and scrutiny, owing to the fact that where the State relies upon the testimony of an accomplice for conviction there is an implied agreement to extend immunity to such accomplice by reason of his giving testimony; yet you are instructed that if you believe beyond a reasonable doubt that the testimony given by the said Black is true, that you have a right, upon such evidence, to find the defendants, or either of them, guilty, whether the testimony of such accomplice be corroborated or not.”

These were all the instructions given concerning the duty of the jury in acting upon the testimony of an accomplice. The deféndants requested the following, which was refused: “The jury are instructed that in a prosecution for the larceny of án animal, being the fiddleback steer involved in this trial, an accomplice’s testimony is not corroborated as to defendants’ connection with the crime by his having stated to officers the place near defendants’ home or abode where the hide and brand were hidden; and the fact that such hide and brand were found as stated by the accomplice, Black, unless accompanied by other independent facts and circumstances in addition to the testimony of the accomplice, Black, is no corroboration of the accomplice’s testimony.”

Plaintiff in error, who, for the sake of convenience, is spoken of as the defendant, and his brother, James, were informed against and tried together, James being acquitted by the jury. Black testified that on January 8th, 1900, he and defendant drove a steer of Mrs. Tillotson into the corral at the Merrill ranch, where they were employed; that both Lewis and James had their guns, and that James shot the steer first, but failed to kill it, and that Lewis then shot and killed it; that the meat was locked up in the granary, the brands cut out and they and the hide buried and concealed. Black quit his employment and left the ranch about February 20th, some six weeks after the alleged larceny, and reported the circumstances to the prosecuting attorney. There is evidence that there was bad feeling between him and the defendant, and that he threatened to get square. James Smith had been in the town of Douglas for .two or three months, staying at the hotel, on account of a broken leg. He and the defendant and four other witnesses, who had no interest in the result of the trial, so far as appears from the record, testify that he and defendant left the hotel in a buggy for the ranch, some fifty-five miles distant, on January 6th, two days prior to the alleged larceny. They all state that he had to be helped into the vehicle and could not walk or stand without the use of two crutches. Another witness testifies that they stayed with him the night of the 6th at the Brown Spring ranch and left for the Merrill ranch on the morning of the 7th. And he makes the same statement as the others as to the crippled condition of James. He also says that James was again at the Brown Spring ranch on the 13th, and that he had to help him in and out of the buggy. The prosecution fix the date of the alleged larceny, with care and with apparent certainty, by reference to a fact stated by Black that on that day the mail coach stopped at the ranch, having a passenger, named Richard Flynn. Both the proprietor of the mail line, who had entered Flynn’s stage fare in his books, and Flynn himself testify that that day was the 8th of January. In the light of the testimony of these five witnesses, therefore, as to the crippled condition of James Smith, it seems highly improbable that he could have taken the active part in the killing of the steer detailed by Black.

But it is a matter of yet more serious consideration that this evidence tends to prove that both Lewis and James Smith were absent from the ranch on the 4th, 5th and 6th and until late in the afternoon of the 7th, and that Black was in possession, either alone or in company with Harry Schwartz, who also about this time left the ranch in anger— or as Black expressed it, “They had a kind of a row and he quit them to come to town.” Lewis testifies that, having returned to the ranch on the 7th, he left again on the morning of the 8th and did not return until about noon of the 10th; that, after his return, he went to the granary and, seeing the beef, said to Black, “Hello, you have got meat,” and Black said, yes, he had killed a 2-year-old; that; naturally supposing it to be an animal belonging to Mrs. Merrill, he said no more about it. James says that, as nearly as he can remember, the first time they had beef at a meal was the evening of the 8th.

Under the case made by the prosecution, therefore, fixing the date as the 8th of January, there is quite an array of evidence showing that, for some four days prior, both Lewis and James Smith were absent and the ranch in possession of Black, either alone or in company with Schwartz. This afforded them ample opportunity to kill the animal, store the meat in the granary and secrete the hide and brands, without the knowledge of defendant or his brother; and six weeks afterwards, when ill feeling had arisen between them, to charge the crime to defendant and his brother, and at the same time have in hand full and minute information of the secreting of the hide and brands and where they could be found, in order to establish the perpetration of the offense.

Under these circumstances, it was necessary that the jury should be correctly and accurately informed as to the principles which should govern their consideration of this character of evidence. They were instructed that they had a right to find the defendants guilty upon the testimony of the accomplice, whether corroborated or not. No doubt a jury may convict upon the uncorroborated testimony of an accomplice, for the reason that there is no law of this State which forbids it, and the court would not be authorized by a peremptory instruction to direct an acquittal as in a case where no evidence was produced by the State connecting the defendant with the crime. But it is questionable if the jury have a “right” to find a defendant guilty of a felony upon such uncorroborated testimony, and the authorities are uniform that they ought not to do so. Greenleaf says: “Judges, in their discretion, will advise a jury not to convict of felony upon the testimony of an accomplice alone and without corroboration; and it is now so generally the practice to give them such advice that its omission would be regarded as an omission of duty on the part of the judge. And, considering the respect always paid by the jury to this advice from the bench, it may be regarded as the settled course of practice not to convict a prisoner in any case of felony, upon the sole and uncorroborated testimony of an accomplice.” (Greenleaf Ev., Sec. 380.) And many of the states have adopted statutes forbidding it.

Tt is not necessary in this case, however, to determine whether the omission to so advise the jury is reversible error, for the court also charged the jury that if they believed the accomplice spoke the truth and his evidence was corroborated upon any material fact, they should find the defendant guilty. This was a positive instruction that it was their duty to convict if there was corroboration upon any material fact, and it was the duty of the court to inform the jury what constituted such corroboration; certainly when a proper instruction upon that subject was requested by the defendant. This court in McNeally v. The State, 5 Wyo., 69, in terms decided that the fact that the accomplice may have told the truth as to the location of the hide and brands of the animal feloniously killed, and conducted the officers to the spot where they were, did not inculpate the defendant, nor did the fact that they were found on his premises a short distance from his dwelling; and that these things were not a corroboration of the testimony of the accomplice. The principle is emphasized in this case where the evidence tends to show that both of the defendants were absent from the place for several days just prior to the alleged time of the killing of the animal, giving full opportunity to the accomplice and others to perpetrate the offense and conceal the evidences of it, without the knowledge or complicity of the defendants. The jury might well understand that these things were the corroboration which made it their duty to find the defendants guilty under the court’s instructions, and we think the refusal to instruct them, as requested, was error and clearly prejudicial to the defendant.

It is urged by the Attorney General that Black was not, in contemplation of law, an accomplice, as he testified that he was simply acting under the directions of Lewis Smith, as his employment required. But he made no claim that he was coerced or in fear. And, moreover, he was treated by the prosecution throughout the trial as an accomplice, was so declared to be by the court in its charge to the jury and by his own admission and, substantially, that of the prosecuting attorney, he was testifying under a promise of immunity from prosecution. This gave the defendant the right to have his testimony treated as that of an accomplice in the charge of the court. (Com. v. Desmond, 5 Gray, 80; Barrara v. State, 42 Tex., 260" court="Tex." date_filed="1874-07-01" href="https://app.midpage.ai/document/barrara-v-state-4892343?utm_source=webapp" opinion_id="4892343">42 Tex., 260.)

Some objection is made that the exceptions of the defendant relating to the giving or refusing of certain instructions were not preserved in the.motion for a new trial, so as to properly present them to this court for review. But an examination of the record discloses that, in the motion, the giving of certain instructions over defendant’s objection and the refusal of others requested by him are assigned as reasons why a new trial should be granted and an exception preserved to the overruling of the motion. This was sufficient. It was not necessary to incorporate into the motion a statement that these acts of the court were at the time excepted to. The bill of exceptions shows affirmatively that exceptions were at the time reserved to the giving of the instructions complained of by plaintiff in error.

The judgment will be reversed and the case remanded for a new trial. Reversed.

Potter, C. T., and Knight, J., concur.