No. 9701 | La. | May 15, 1886
The opinion of the Court was delivered by
William Richardson, one of the accused, charged with entering in the night-time a certain store-house of one T. A. Scott, and that same lie did wilfully, feloniously and burglariously, break and enter, with the intent to steal, take and carry away certain goods, mon'ey, etc., was duly convicted, and sentenced to three years imprisonment in the penitentiary, and from the verdict of guilty, and the judgment of the court, he prosecutes this appeal.
His counsel rests his case on two grounds, viz:
1st. The refusal of the trial judge to charge the jury as he had requested.
2d. The accused having been ordered to trial without being previously served with a copy of the venire.
I.
To the former objection, it is sufficient answer to say that the indorsement of the sheriff on the information shows that the accused was served on the 8th of February, 1886, and the minutes of the court show that the trial occurred on the 12th of same month — hence, “two entire days” intervened between the day of service and the day of trial; and the law was fully complied wirh. R. S. sec. 992.
Besides, the objection being made, after verdict, that the accused was not served with a correct list of the jury comes too late. 23 Ann. 620, State vs. Vester; 23 Ann. 621, State vs. Axiom.
H.
The refusal of the trial judge to give the jury a requested cha.rge is made the subject of a zealous and earnest argument by the.counsel for the accused.
’ It has been held by this Court’s predecessors that an accomplice, joined in the same indictment with the prisoner to be tried, may testify; provided he be not put on trial at the same time. 23 Ann. 78, State vs. Boyone and Abrieil; 25 Ann. 522, State vs. Prudehomme; 7 Ann. 379, State vs. Conner; 4 Ann. 435, State vs. McClaire
The diligent counsel has collected quite a number of common law authorities, as well as decisions of the courts of other States, to the general effect that it is the duty of judges, “while explaining to the jury their right to convict on it” — (the testimony of an accomplice)— “alone, to caution them concerning it, advising them m prudence, not to return a verdict of guilty unless in their opinion it is confirmed by evidence from a purer source.” Bishop on Crim. Procedure, 1 vol. secs. 1169, 1150, 1170, et sequiter; Wharton’s Crim. Evidence, sec. 441; Wharton’s Crim. Law, sec. 789.
Conceding, arguendo, the correctness of the rule mentioned as prevailing elsewhere, this record does not disclose that the witness in question was not corroborated by other witnesses.
While, under the given state of facts indicated in opinions of the learned authors quoted, the rule may be correct, yet the record under consideration should disclose their applicability in order to render the requested charge a proper one.
In the record appears an extract from a distinct and different charge, given by the judge a quo in lieu of the one demanded for the accused, and in which he says to the jury: “ 1 will simply say that in weighing the testimony of one who has turned State’s evidence, you should take this circumstance, into consideration, as you would any other circumstance, which might affect the testimony of a witness who testifies— and if you are satisfied that this circumstance, or any other, has been of sufficient weight to induce him to speak falsely, and that he had done so, it would be your duty to reject such testimony.”
• This charge we think responds to the just demands of the accused, and that he has no reasonable ground of complaint.
Judgment affirmed.