22 P. 753 | Nev. | 1889
The facts sufficiently appear in the opinion and head notes. The appellant was convicted of incest. It is claimed that the evidence is insufficient to support the verdict of the jury, in this: that the testimony of the prosecuting witness is uncorroborated, and that, therefore, a conviction was improperly had, relying upon the statutory provision. Section 4245, Gen. Stat. Nev. reads: "A conviction cannot be had upon the testimony of an accomplice, unless he be corroborated by such other evidence *406 as shall tend 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."
Upon an examination of the transcript, it appears therefrom that there was some evidence tending to corroborate the accomplice. Defendant was in the habit of taking the prosecuting witness with him to the River ranch, and there remaining over night, and on one occasion they occupied the same bed, in the presence of the witnesses, Neely and Dakin. He admits these facts. He also admits the fact that his attention was called to the condition of his daughter, and that he took her to San Francisco and placed her in St. Mary's hospital, where she gave birth to a child, after which he sent her to Iowa by the southern route. She was brought from Iowa by the sheriff of Elko county. While she was at the hospital awaiting confinement, she wrote to her sister, in this state, charging that their father was the one who had committed the crime. Publicity appears to have been given to the accusation, and, several months before the finding of the indictment, persons acting in behalf of the defendant persuaded her to make an affidavit, fully denying the charge, and also to copy and sign a letter to the same effect, drawn in the interest of defendant, and addressed to this same sister who was present at the time of writing and signing the letter. It may be said of this circumstance, as well as each of the others, that it does not of itself necessarily tend to establish guilt, and it is true that an innocent father might have done any of these things; but taken as a whole, these circumstances form a combination tending to connect defendant with the commission of the offense. The court instructed the jury that a conviction could not be had upon the testimony of an accomplice alone, without corroboration. All that the statute requires is that the circumstances should be such as to convince the jury; such as to induce them to believe that the accomplice had sworn truly and that the charge was true. If the jury are satisfied with the weight of the corroborating circumstances, it is enough. The jury may disregard the testimony of an accomplice, or of any other witness who admits that he has previously made other and different statements, or has sworn to a different state of facts from that which he testifies to on the witness stand, yet they are not *407 bound to do so. They may give to the testimony of the witnesses such credit as, in view of all the circumstances, including any corroborating testimony that may have been introduced, they may deem it entitled to.
Mr. Justice Whitman, in the case of State
v. Chapman,
The statements of an accomplice should be received with great caution, and the court, as the court did in this case, should always so advise; yet if the testimony of the accomplice obtains full credit with the jury, and they are fully convinced of its truth, any fact or circumstance which tends to corroborate is admissible, and complies with the statute. The case under consideration is much stronger than several of the above-mentioned cases in which convictions were had. The uncontradicted testimony shows that there was but one bed at the River ranch during the time that this cohabitation is alleged to have taken place; that one night, at least, father and daughter occupied the same bed. The night in question Neely and Dakin came to the ranch. Asked permission to remain over night. The defendant spoke to the daughter and said, "Well, Maud, I guess we can spare them the buffalo robes;" and Maud answered, "Yes." The bed for the travelers was made on the floor of the cabin, and consisted of a horse blanket, buffalo robe, and an overcoat. There was no other bedding in the house except that on the bed occupied by the defendant and his daughter, and it is fair to presume, from the above facts, (and the jury must have come to that conclusion,) that the defendant and his daughter intended to occupy the same bed at the river ranch that night; therefore they were not provided with any extra bedclothes. Ida Gardner testified that during the months of December, 1887, and January, 1888, her father kept stock at the River ranch. He would go there two or three times a week to feed them. That either Maud or herself *409 would accompany him. That there was but one bed in the cabin at the River ranch, and he never used to take any extra bedclothes.
Appellant assigns as error the giving of the instructions defining "reasonable doubt," claiming that they are conflicting. We had occasion to pass upon the same question in the case of State v. Potts, ante, 389, decided at this term. We there held that the instruction complained of, when read in connection with the statutory definition of "reasonable doubt," was not a reversible error. The same rule will apply in this case.
The court did not err in giving the instruction as to the weight and effect to be given to the defendant's evidence. This instruction was given and approved of in the case ofPeople v. Cronin,