Summary
In State v. Streeter, 20 Nev. 403, this court held: "Objections to questions asked a witness and ruled out by the court become immaterial and will not be considered in the appellate court where it affirmatively appears that the witness was afterward allowed to answer questions of the same import.
Summary of this case from State v. VaughanOpinion
No. 1308.
October Term, 1889.
APPEAL from the District Court of the State of Nevada, Elko County.
R. R. BIGELOW, District Judge.
J. W. Dorsey, and J. A. Plummer, for Appellant.
I. The testimony in this case introduced as corroborative of the testimony of the prosecuting witness, is wholly insufficient to connect the defendant with the commission of the offense (Testimony reviewed,)
The necessity of corroboration, and the character and extent of such corroboratory evidence, is the subject of statutory law in this state. (Gen. Stat. 4245.) The law goes to the full extent of requiring the corroboratory evidence of itself, and without reference to the testimony of the accomplice, to connect the defendant with the commission of the offense — the very thing for doing which the prisoner stands indicted. Corroboration as to time, place, and circumstances of the transaction is insufficient. ( Childers v. State, 52 Ga. 106; Hammack v. State, 52 Ga. 397; Middleton v. State, 52 Ga. 527.)
II. The statute applies not only to accomplices, in a technical sense, but to all witnesses who were particeps criminis, whether as principals or accessories. The term accomplice is not used in the restricted or technical sense. ( Ervin v. State, 1 Tex. App. 301; Kelly v. State, 1 Tex. App. 629; Roach v. State, 4 Tex. App. 46; Hamilton v. State, 9 S. W. Rep. 688; Davis v. State, 2 Tex. App. 588; Boyd v. State, 24 Tex. App. 570.)
III. The court erred in giving the instruction in relation to the weight and effect to be given the evidence of the defendant. ( Hartford v. State, 96 Ind. 461; Pratt v. State, 56 Ind. 179; Greer v. State, 53 Ind. 420; Unruh v. State, 105 Ind. 123; Bird v. State, 107 Ind. 154.) The imperative instruction of the court was a direct invasion of the province of the jury.
IV. The court erred in sustaining objections to the following questions, asked upon the cross examination of Ida Gardner: (1) "Did your husband write to you and tell you that he wanted you to stand in and help to cinch the old man — referring to Mr. Streeter, your father?" (2) "You are now testifying on this stand, and you have appeared as a witness, haven't you, because, and only because, you have been told to do it by your husband?" ( State v. Cooper, 83 Mo. 698; 1 Whar. Ev. Sec's 408, 544, 547, 549, 561; 1 Green Ev. 450; State v. Beeves, 10 S. W. R. 846.)
John F. Alexander, Attorney-General, for Respondent.
I. The cases cited by appellant have no application to this case.
II. The preponderance of authority in this country is that a jury may convict a prisoner on the testimony of an accomplice alone, though the court may, at its discretion, advise them to acquit, unless such testimony is corroborated on material points. (1 Whar. Crim. Law, 783; People v. Gibson, 53 Cal. 601; Johnson v. State, 65 Ind. 269; Ulmer v. State, 14 Ind. 52; State v. Wart, 51 Iowa, 587; People v. Rolfe, 61 Cal. 541; People v. Cochran, 61 Cal. 549; State v. Chapman, 6 Nev. 320; State v. Lambert, 9 Nev. 321; Hamilton v. People, 29 Mich. 178; Lindsay v. People, 63 N. Y. 143.)
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 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 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, 6 Nev. 325, said: "How much the weight of this evidence may be is not for this court to decide. It is evidence tending to a statutory corroboration, considered by the jury sufficient." In the case of People v. Cloonan, 50 Cal. 450, the court said: "It is sufficient, if it tends to connect the defendant with the commission of the offense." To the same effect are the cases of People v. Townsley, 39 Cal. 405; People v. Clough, 73 Cal. 351; 15 Pac. Rep. 5. In the case of State v. Miller, 65 Iowa, 63, 21 N. W. Rep. the court said: "But it is for the jury to weigh and determine the effect of such evidence and its sufficiency; and each cause must be determined upon its own facts, because, in the nature of things, the corroboration cannot be the same in any two cases." In New York, where they have a statute similar to ours, all that is required is some other evidence fairly tending to connect the defendant with the commission of the crime charged, so that the conviction will not rest entirely upon the evidence of the accomplice. The question as to whether the evidence is sufficient corroboration is for the determination of the jury. ( People v. Ogle, 104 N. Y. 513; 11 N. E. Rep. 53; People v. Everhardt, 104 N. Y. 594; 11 N. E. Rep. 62; People v. Elliott, 106 N. Y. 292; 12 N. E. Rep. 602.) In the case of Roberts v. State, 55 Ga. 221, the court said: "If they, (meaning the jury), found he was an accomplice, still there is, in our judgment, sufficient evidence to corroborate the witness. He (the defendant) had access to the store of Jack, delivered coke. * * * At all events, the two questions, whether he was an accomplice, and, if so, whether he was supported by other evidence, were fairly submitted to the jury; and if they found, either that he was not an accomplice, or that he was supported, if an accomplice, the verdict is sustained. * * * They might have found the latter, for there are circumstances, though slight, tending to corroborate Fain's evidence." The case of Hammack v. State, 52 Ga. 402, cited by appellant, sustains the views herein expressed. In Childers v. State, Id. 106, and the case of Middleton v. State, Id. 527, there was neither testimony nor circumstances to connect the parties with the commission of the offenses but the contrary. In the Childers case the mother testified that he was at home and in bed at the very time that the robbery was said to have been committed. None of the other defendants attempted to implicate Childers, except Lee. In the Middleton case there was not a circumstance to connect him with the murder, except the statement of Thurman, uncorroborated. In the case of Bell v. State, 73 Ga. 572, the court said: "While a conviction cannot be had upon the uncorroborated evidence of an accomplice, * * * yet it is impracticable to lay down any rule as to the precise amount of evidence which is requisite to sustain the accomplice's account, * * * further than that there must be other evidence sufficient to satisfy the jury of the fact."
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 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 of People v. Cronin, 34 Cal. 195, and has been approved of in the following cases: State v. Hymer, 15 Nev. 54; People v. Morrow, 60 Cal. 147; People v. Wheeler, 65 Cal. 78; 2 Pac. Rep. 892; People v. O'Neal, 67 Cal, 379; 7 Pac. Rep. 790; People v. Knapp, 71 Cal. 10; 11 Pac. Rep. 793; State v. Sterrett, 71 Iowa, 388; 32 N. W. Rep. 387; Bressler v. People, 117 Ill. 439; 8 N. E. Rep. 62; and in a number of other states. The instruction does not invade the province of the jury. It leaves it to them to determine what credit should be given to the defendant's testimony, after considering all the facts in the case. The rulings of the court sustaining objections to certain questions propounded to the witness Ida Gardner for the purpose of showing her animus towards the defendant are also assigned as error. The rulings, however, are immaterial and unneccessary to be considered, for the reason that the witness was afterwards allowed to answer questions of the same import, and by her answers fully established her sympathy with the prosecution. The evidence in this case justifies the verdict. The corroborating circumstances are sufficient to convince the minds of a jury of the guilt of the defendant. Judgment affirmed.