State v. RussellState v. Russell
The opinion of the Court was delivered by
Thе defendant, Walter Russell, was found guilty, by a jury, of the crime of being accessory before the fact to burglary and larceny, and sentencеd to the term of three years imprisonment at hard labor in the State Penitentiary. From this sentence and judgment he has appealed.
Thе bills of exception filed embrace, substantially, the grounds set
The first bill is taken to the competency of the witness Bradley, who testified on the part of the prosecution, because the said Bradley, who was indicted, in a separate indictment, as principal, and had plead guilty, but had not yet been sentenced, is alleged to be incompetent to testify in the case against defendant, who is indicted as accessory before the fact to thе same alleged crime, and “ an accomplice who is charged as principal in a felony is not competent to testify against an accomplice in the same felony, whether that accomplice is charged with being ac-cessory before аnd after the fact, or with being principal in first or ■second degree;” and the said Bradley “ having been legally indicted, and having plead guilty to thе indictment, is thereby infamous and in■competent to testify in any case.” The judge a quo, in his reasons given •for admitting the testimony of this witness, says: “ The defendant Russell and witness Bradley were not being tried together, but on separate •indictments. Bradley had plead guilty to the charge of burglary and 'larcеny, but had not been sentenced by the court, and, under the law, he is not considered infamous until sentenced, and, therefore, was comipetent as a witness. The law permits accomplices not indicted together to testify for or against each other. See Wharton, vol. 1, p. 763, et seq."
The second bill of exceptions was taken to the refusal of the judge to •charge, as requested by defendant’s counsel, that thеy ought not to render a verdict of guilty on the evidence of Bradley, an accomplice, •alone, and that “ the testimony of a principal in a felony who has pleaded ■guilty of said felony is not sufficient, uncorroborated and 'alone, to justify a jury in convicting an accessory before the fact of said felony.”
The third bill was taken to the admission of testimony offered by the State proving that the accused was, at the time witness was committing the burglary and larceny, just outside the store watching for •the witness while the witness was committing the act; and this evidence •was objected to on the ground that it did not correspond with the charge against the defendant. These objections were оverruled by the judge ■a quo for the following reasons: “That it was competent to show that the accused, previous to the time at which it was chаrged that, he “ counseled, abetted and commended ” the burglary and larceny, had himself ¡attempted to commit the crime and had failed, for the purpose of showing a circumstance rendering the present charge against him probable. 'The evidence was not offered to show his guilt of an offense not charged against him, but to show a circumstance going to show his guilt of the ■crime that was charged against him. The proof that one remained outside and was not present aiding in the larceny is admissible to show accessorial guilt.”
On the subject of the testimony of accomplices the authorities, to-our mind, not only authorize its introduction, but justify conviction by the jury on such testimony although it may not be corroborated by other. Archbold, Crim. Practice and Pleading, vol 1, pp. 500, 501, 502, 503;
The grounds, other than those contained in the bills of exception,, on which defendant seeks a reversal of the judgment, are set forth in the motions for new trial and in arrest of judgment, and are, first, that “ no copy of the indictment in this case or list of the jury drawn to try this case was delivered to the defendant two entire days before the trial,, as the law directs.” Second, that there is not a sufficiеnt charge in the-bill of information setting forth that the offense of the principal was-done “ contrary to the form of the statute,” etc.; and the endorsement on the bill does not sufficiently show the offense with which the defendant, Bussell, is charged.
When the accused goes to trial withоut objection, it will be too late-after conviction to urge, as error, that he had not been served with a copy of the indictment аnd a list of the jurors who were to try him.
It is not necessary to make a sеparate conclusion in each case in a
“ The concise endorsement of the character of the offense upon an informatiоn or indictment is for convenience only, and forms no part of the substance of the charge.” “ The prisoner is never called to answer to the condensed title of a bill or information. He is arraigned and tried upon the bill or information itself.”
The judgment of the lower court is affirmed with costs.