42 P. 1 | Or. | 1895
Opinion by
It is disclosed by the bill of exceptions that Louisa Babb, the person with whom the adultery is claimed to have been committed, testified, as a witness for the state, over the defendant’s objection, that, on July twelfth, eighteen hundred and ninety-four, concluding to abandon her husband, she engaged one Sid Horn to come to her house after her clothing, which he did on the following day; that she left her home in his company about eleven o’clock in the forenoon, and, after going a short distance met, without any previous agreement, the defendant, whom she did not like, or look upon as her friend; that, not desiring to be seen by others, she remained in the woods with the defendant until about nine o’clock that evening, during which time she had sexual intercouse with him; that while in his company they ate a lunch consisting of pickles, cheese, cold beef, and bread; that at the time last mentioned she went to Sid Horn’s house, and in an hour or more thereafter the defendant called there, but soon went away; that, on the following morning at about two o’clock she left Eugene on the train for Portland to seek work and to visit the coast; that, on entering a car, she saw the defendant who told her to go into another car, which she found on entering to be the smoking car; that, on arriving at Portland, the defendant ordered a cab, and she was conveyed to a hotel, where that night she occupied the same bed and had sexual intercourse with him. The following evidence was also offered and admitted over the defendant’s objection, as tending to corroborate the tes
In view of this evidence, it is contended that Louisa Babb, if her testimony is to be believed, was an accomplice; that her admissions and confession have not been corroborated upon the material issue, and that the court erred in refusing to give the instruction requested. “At common law,” says Strahan, J., in Slats v. Jarvis, 18 Or. 360, (23 Pac. 251,) “and in the absence of any statute governing the subject, it was the practice of judges to tell juries that they might legally convict on the evidence of an accomplice alone, if they thought they could safely rely on his testimony; but, at the same time, to advise them never to act on the evidence of an accomplice unless he be confirmed as to the particular person who was charged with the ofiense: 1 Wharton on Criminal Law, § 785. And Baron Parke said that it had always been his practice to tell the jury not to convict the prisoner unless the evidence of the accomplice be confirmed, not only as to the circumstances of the crime, but also as to the person of the prisoner”: 1 Wharton on Criminal Law, § 787, and authorities there cited. “It,” says Gray, C. J., in Commonwealth v. Holmes, 127 Mass. 424, (34 Am. Rep. 391,) “has always been held that a jury might, if they saw fit, convict on the uncorroborated testimony of an accomplice. Lord Hale, Lord Holt, and Lord Mansfield treated the question of his credibility as one wholly for the determination of the jury, without any precise rule as to the weight to be given to his testimony.” But, whatever the rule may have been at common law, the statute now provides that “A con
In State v. Odell, 8 Or. 30, one William George, an accomplice, testified that he and the defendant waited outside while another person went into the building and brought out the property described in the indictment. The testimony of other witnesses tended to prove that the defendant was in the town in which the theft was committed about the time of the commission of the alleged crime, and that a sack of flour was missed from the place where the larceny was alleged to have been committed, but it was there held that such evidence did not tend to connect the defendant with the commission of the crime. In State v. Townsend, 19 Or. 213, (23 Pac. 968,) an accomplice testified that he and the defendant stole a cow, which they drove from the pasture of the owner, and, in pursuance of a previous agreement, delivered to other persons at Pendleton, at which place she was butchered. The corroborative evidence was the testimony of a witness who said that on January fourteenth, eighteen hundred and eighty-nine, at about eight o’clock in the evening, the accomplice left the house at which the witness was then staying, which was between four and five, miles from Pendleton, and a short distance from the pasture from which the cow was stolen; that a little later the accomplice returned in company with the defendant, whom he introduced under an assumed name; that the defendant and accomplice together, soon thereafter left the house, and the next day he heard the cow was missing. The owner of the cow also testified that she was stolen from his pasture on the night of January fourteenth, eighteen hundred and eighty-nine. The state having rested, the counsel for
If there was any other evidence of the adulterous act, or of facts from which it could be inferred, and it was sought to prove the defendant guilty of it, the proof of the opportunity and the corroborating evidence of circumstances surrounding it might possibly, under the rule thus announced, be held sufficient to warrant a conviction. But in that case the crime was susceptible of proof by the person who lost the animal, while in the case at bar the only evidence of the commission of the crime is the testimony of the accomplice herself. “What appears to be required,” says Roscoe in his work on Criminal Evidence, (Yol. 1, *183,) “is that there shall be some fact deposed to, independently altogether of the evidence of the accomplice, which, taken by itself, leads to the inference, not only that a crime has been committed, but'that the prisoner is implicated in it.” Tested by this rule, we are unable to discover any evidence, aside from Mrs. Babb’s, which, taken by itself, leads to the inference that a crime even has been committed. There was no agreement existing between Mrs. Babb and
