This is an indictment charging the defendant with an attempt to burn certain goods, wares, and merchandise of one Joseph Goldstein, which were insured against loss by fire by the Rochester German Underwriters Agency of Rochester, New York, and the Old Colony Insurance Company of Boston, Massachusetts, with the-intent to injure and defraud said insurance companies.
The defendant was tried upon said indictment in the Superior Court and a verdict. of guilty was rendered by the jury. A motion for a new trial was denied by the trial court and the case is now before us on the' defendant’s bill of exceptions setting forth sixty-five assignments of error. As we are advised, through the defendant’s brief, the exceptions numbered 1, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 14, 15, 16, 17, 18, 21, 22, 23, 24, 25, 27, 28, 32, 33, 36, 37, 38, 40, 44, 46 are abandoned. The defendant’s exception numbered 2 is based upon the refusal of the trial court to. exclude Joseph Goldstein, as a witness, on the ground that, he was an atheist and therefore any oath which might be administered to him would be meaningless.
We are well aware that it has been held, notably in the older decisions, that a person who does not believe in the existence of a God nor in a future, state of rewards and punishments cannot be a competent witness in court. And that it has also been held that a disbelief in the existence of God must be shown by the previous declarations of the person offering himself as a witness and that such declarations having been shown the person cannot testify in his own behalf in restoration of his competency for the reason that he would be no more affected in his answers in that regard than he would be in his testimony regarding the facts of the case in which it was proposed to examine him.
Jackson ex dem. Tuttle
v.
Gridley,
In the later decisions however the rule regarding the competency of witnesses has been considerably relaxed and the more modern rule seems to be that a witness may testify under conditions which amount to the fear of punishment, either here or hereafter, in case he should testify falsely. In 3 Wigmore on Evidence, Sec. 1827, we find it stated that, “The true purpose of the oath is not to exclude any competent witness, but merely to add a stimulus to truthfulness wherever such a stimulus is feasible. Until the 1800s, however, this advanced notion of its purpose had not been reached. The requirement was inexorable; with the result that three classes of persons were absolutely excluded from testifying; namely, adults having an atheistical belief, infants lacking any theological belief, and adults having the requisite belief, but forbidden by conscience to take an oath. It came gradually to be perceived that the use of the oath, not to increase testimonial efficiency, but to exclude qualified witnesses, was not only, *510 an abuse of its true principle, but also a practical injustice to suitors who needed such testimony. . . . The first, statutory efforts in England to relieve from this injustice are found at the end of the first quarter of the 1800s. Today, practically everywhere, the injustice is remedied. Arguments are no longer needed to prove the impropriety of the old inexorable rule. It is conceded that the oath should be dispensed with for appropriate classes of witnesses.”
In the present case the witness, Joseph Goldstein, was sworn without objection, the counsel for the defendant making his objection for the first time after the administration of the oath. ' Counsel for defendant, upon his own request, then proceeded to examine Goldstein, under the oath which had. been administered to him, as to his belief in God, and obtained from him the statement before referred to that he believed in God, the same God all people believed in. It was then left to the option of the defendant to have this witness affirm, in addition to the oath which had already been administered, but this he did not care to have done. The trial judge is in a position to estimate the situation and to reach a proper conclusion as to the competency of the witnesses which may be produced before him and while his decision may not be final much must be left to the exercise of his discretion under all the circumstances of the case with which he is fully acquainted. It is not desirable to establish a hard and fast rule which shall result in depriving litigants of testimony if it can be admitted under proper safeguards.
Having examined the witness under oath as to his belief in a God, and receiving the answers that he did, it would *511 hardly be consistent to permit the defendant to call other witnesses to contradict him by showing previous, contrary declarations made in their presence. We think that under the circumstances of this case it was not error for the trial court to permit Joseph Goldstein to testify.
While the impropriety of these remarks is apparent, we do not see that the exception thereto presents any question for our consideration. An exception to be of any valué must be taken to some action or ruling of the court. The exception in question is not so taken. It is simply taken to remarks of counsel concerning which the court has not been called upon to act or to make any ruling. It would have been competent for the defendant to request the court to instruct the jury to disregard these remarks and upon the refusal of the court so to do he might have had an exception. State v. Farr, 29 R. I. 72. The jury however were carefully and properly instructed upon the points referred to in the remarks of counsel for the State and therefore it does not seem to us that the defendant could have been prejudiced thereby.
The defendant’s exceptions numbered 60 and 61 aré to the refusal of the trial court to charge in accordance with his 7th and 8th requests. (1) “If the testimony in the case that Riddell was not at the scene of the crime outweighs the evidence offered by the State for the purpose of proving him at the scene of the crime, at the time the crime was committed, the verdict should be for acquittal;” and (2) “That if the evidence offered by the defendant in support of his alibi, when considered by itself, raises a reasonable *513 doubt in the minds of the jury as to the guilt of the accused, he must be acquitted.” These requests had already been covered in the charge of the court and were therefore properly refused.
Without undertaking to discuss severally the numerous exceptions which now remain, we will proceed to consider such questions as seem to us to be of sufficient importance to require consideration.
Joseph Goldstein, the proprietor of the store which the defendant was charged with attempting to burn and for which attempt he was subsequently indicted and convicted, was a witness for the prosecution. He was beyond question an accomplice of the defendant and the defendant claims that he could not be convicted upon the testimony of an accomplice unless such testimony was corroborated by that of other witnesses or by circumstances surrounding the transaction, and the defendant also claims that no such corroboration is to be found in the evidence.
In the case at bar the trial court instructed the jury that Joseph Goldstein was an accomplice of the defendant and that they were only to consider his testimony so far as they might find it corroborated by other witnesses. . In this instruction the trial court went further than the absolute requirement of the law, although we cannot say that such instruction was improper or was not justified by the circumstances of the case. However that may be, the defendant cannot complain if the instruction of the court was more favorable to him than the law required.
(8) The only connection of Morris Goldstein with the whole transaction was subsequent to the alleged attempt to burn and consisted in his taking from the defendant, at the defendant’s request, and throwing away, an empty can which had been used by the defendant to convey gasoline to the Goldstein premises with a view to facilitating the conflagration. If Morris Goldstein can be said, upon this state of facts, to have been an accessory he was an accessory after the fact. The act of disposing of the can had no relation to the accomplishment of the crime which the defendant and Joseph Goldstein were undertaking. At most it could be nothing more than an attempt to suppress evidence after the crime had been committed. The weight of authority however seems to hold that an accessory after the fact is not an accomplice whose testimony requires corroboration. 1 R. C. L. 159;
Levering
v.
Commonwealth,
If we should assume that there must be some corroboration of the testimony of Joseph Goldstein and Morris *516 Goldstein, Ms son, in order that the jury might be enabled to consider such testimony we think that the testimony of Sarah Goldstein, Ulder LaChappelle and John O’Donnell furnish facts and circumstances which are, to some extent, corroborative of the testimony of both Joseph and Morris. It is not necessary that the testimony of a witness should be corroborated in every part. It is competent for the jury, if they find that some material part of the testimony of the witness is corroborated, to believe that he speaks the truth as to other parts which are not corroborated. 1 R. C. L. 169.
It is not necessary for us to determine, in the case before us, whether the act of Morris Goldstein, in disposing of the can under the conditions described, made him an accessory because if he was an accessory it was after the fact and he would not be an accomplice. Unless he was an accomplice there would be no necessity for corroborating his testimony in any aspect of the case. Besides- it is extremely doubtful if, under the facts of the present case, he could be considered an accessory after the fact.
There is no statute in tMs State requiring the testimony of an accomplice to be corroborated. There is nothing in the transcript of testimony to show that Morris Goldstein was an accessory before the fact. There is evidence of facts and circumstances which go to corroborate the testimony of both of these witnesses, even if it be assumed such corroboration is necessary.
After a careful examination of the transcript of testimony in connection with the defendant’s bill of exceptions we do not find any other questions raised by the defendant-which merit particular consideration.-
The defendant’s exceptions are all overruled and the case is remitted to the Superior Court for sentence.