143 P. 588 | Utah | 1914
Orson M. Powell, the appellant, and one Brigham M. Smith were jointly charged with the offense of grand larceny ; that is, with having stolen and killed a steer in Emery County, Utah, on the 17th day of January, 1913. Smith pleaded guilty to the charge and was sentenced to' serve a term in the Utah state prison. Powell was tried and convicted, and appeals.
Among other errors assigned appellant’s counsel insist that the evidence is insufficient to sustain the finding of the jury, and that the court erred in its charge, as hereinafter stated. The evidence upon which appellant was convicted, apart from that given against him by said Smith, was all circumstantial. Smith testified in substance that he and appellant, on the afternoon of the 17th day of January, 1913, at 3 or 3 :30 o’clock, killed the steer in question in a ravine or
“A conviction shall not be had on the testimony of an accomplice, unless he is corroborated by other evidence which in itself, and without the aid of the testimony of the accomplice, tends to connect the defendant with the commission of the offense; and the corroboration shall not be sufficient if it merely shows the commission of the offense or the circumstances thereof, ’ ’
“Respondent concedes that the evidence offered by the State, other than that of the witness Smith, standing alone, would not support a verdict of guilty; but it is not required •that corroborative evidence shall, of itself, be so strong as to establish the guilt of the defendant. All the statute requires is that there be some evidence which, by itself and without the aid of the testimony of the accomplice, shall tend to connect the defendant with the commission of the offense”— citing State v. Spencer, 15 Utah 154; 49 Pac. 302; State v. James, 32 Utah 152; 89 Pac. 460; State v. Lay, 38 Utah 143; 110 Pac. 986.
The question of what is sufficient corroboration under the statute is discussed somewhat at length in State v. Lay, supra. In that case we arrived at the conclusion that the alleged evidence of corroboration was insufficient. Upon the other hand, in the case of State v. Park, 44 Utah 360; 140 Pac. 768, the evidence of corroboration was held sufficient. Assuming, for the purposes of this decision, that the law is correctly stated by counsel for the State, yet the question we must answer is: Is there any evidence, when considered independently of the testimony of the' accomplice Smith, which “tends to connect” appellant with the crime charged in the information? Can it be said that the testimony of Mr. Lidell and that of Mr. Acord respecting the horse’s tracks amounts to corroborating evidence which tends to connect appellant' with the crime? We think not.
In the first place, it is a matter of mere conjecture whether the tracks of the bare-footed horse were made by appellant’s horse, and whether those leading away from the place where the steer was killed were the same as those made by the horse which appellant rode to the county seat as testified to by the deputy sheriff. When it is kept in mind that the tracks were not seen or observed until at least seven days after the tracks were supposed to have been made by one witness, and not until nine days thereafter by the other one, it is not surprising that the witnesses would not state that the horse’s tracks referred to were made by the same horse.
But it is contended that there is other corroborating testimony connecting- the appellant with the offense. It is said that the fact testified to that appellant came to the Smith home and took away some beef on the Sunday after the Friday on which the steer was killed, as testified to by Smith, the accomplice, and by his mother and brother, corroborates Smith and connects appellant with the theft. The evidence on which this conclusion is based is, if possible, more remote and more conjectural than that of the horse' tracks. Suppose it had been shown that a Mr. Brown, or a Mr. Green, or a Mr. Jones, or any two-, of them, had obtained some beef from the Smith home on the Sunday in question; would that fact, when considered apart from anything that Smith had testi
It seems to us that, in view that the court had told the jury that all who are concerned in committing a crime or who abet its commission are principals, the jury may have so construed the charge as to arrive at the conclusion that the appellant and Smith were principals, and if they were principals they were not also accomplices, and hence they found that the witness Smith was not an accomplice, and therefore his testimony needed no' corroboration in order to convict appellant. In view of the entire absence of corroborating evidence as before pointed out, one is easily led to the conclusion that the jury may have so construed and ap
There are other assignments; but, in view that in all prob
The judgment is reversed, and the cause remanded to the District Court of Emery County, with directions to grant a new trial, and to proceed with the case in accordance with the views herein expressed.