Clay v. State

• Citation: 15 Wyo. 42,86 P. 17
• Parties: CLAY v. STATE
• Decision Date: 26 June 1906
• Court: Wyoming Supreme Court

86 P. 17

15 Wyo. 42

CLAY v. STATE

Supreme Court of Wyoming

June 26, 1906

Rehearing Denied August 3, 1906, Reported at: 15 Wyo. 42 at 73.

ERROR to the District Court, Albany County, HON. CHARLES E CARPENTER, Judge.

Henry E. Clay was tried upon an information charging him with murder in the first degree for the killing of one George Gerber. He was found guilty as charged in the information and sentenced to suffer the death penalty. He prosecuted error. The material facts are stated in the opinion.

Reversed.

Thomas H. Gibson, for plaintiff in error.

The evidence showing conclusively that Burney, a witness for the prosecution, testified under promises from the attorneys for the prosecution, thereby being treated as an accomplice, it was error to charge the jury that it was for them to determine from the evidence whether any witness is an accomplice or not. The instructions should have treated Burney as an accomplice. (2 Ency. Ev., 98; Smith v State, 10 Wyo. 166.) It was also error to instruct that while a person may be convicted upon the uncorroborated testimony of an accomplice, the jury ought not to convict upon such testimony alone, unless they are satisfied, after a careful consideration of such testimony, of its truth beyond a reasonable doubt. As an abstract proposition, no doubt the jury have the power to do so and may convict upon the uncorroborated testimony of an accomplice, just the same as they have the power to and may convict upon the unsupported testimony of any other impeached witness; "but it is questionable if they have the 'right' to convict a person of a felony upon the uncorroborated testimony of an accomplice, and the authorities are uniform that they ought not to do so." (Smith v. State, 10 Wyo. 165; Johnson v. State, 4 Greene, 65; Ray v. State, 1 id., 316.) Instead of properly defining legal corroboration, and telling the jury not to convict upon the uncorroborated testimony of an accomplice, the court assumed to control the verdict of the jury by telling them, under the guise of a statement of law, that the uncorroborated testimony of the accomplice makes out a case against the defendant, and that they ought to convict upon such testimony in this case. It amounts to nothing less than a positive instruction that "while it is a rule of law that a person 'may' be convicted upon such testimony, and, therefore, the jury are at liberty and may exercise their discretion as to whether they will do so in any case, nevertheless, the testimony of an accomplice, when believed by the jury, makes out a case against the defendant, and the jury ought to convict upon such testimony in this case, if they believe beyond reasonable doubt that it is true." (Ware v. State, 69 Ga. 349; Hart v. State (Tex.), 82 S.W. 653.)

The court erred in instructing that "if you believe he (the accomplice) speaks the truth, and such evidence is corroborated upon any material fact, you should find the defendant guilty." By conditioning the jury's verdict solely upon their belief that the accomplice "speaks the truth, and such evidence is corroborated upon any material fact," this instruction virtually directed a verdict against the defendant. It not only gave such evidence undue prominence and intimated the opinion that it was worthy of belief, but it decided, in advance, the weight the jury should attach to it when believed, and took from them all power of further considering whether they would be satisfied beyond all reasonable doubt to find the defendant guilty upon the whole evidence, or even this selected portion of it. (Com. v. Holmes, 127 Mass. 441.) To be legally sufficient, the corroborative evidence must "tend to confirm the testimony of the accomplice upon a point material to the issue, in the sense that it tends to prove the guilt of the defendant" (McNeally v. State, 5 Wyo. 69); therefore, it cannot be denied that there are facts which, tending to arouse suspicion, prove motive or opportunity to commit crime, are very material as connecting links in the formation of chains of circumstantial evidence, but which, standing alone or disconnected from the crime charged, in no sense tend to prove the guilt of the defendant by connecting him with that crime. (State v. Willis, 9 Iowa 582; State v. Gillian, 3 Tex. Crim., 133; People v. Morton (Cal.), 73 P. 699.) Such being true, the courts have constantly reversed cases where juries were permitted to convict upon accomplice evidence that was corroborated upon material facts, but which were deemed insufficient in law to render the convictions safe. (State v. Willis, 9 Iowa 582; State v. Gillian, 3 Tex. Crim., 451; People v. Morton (Cal.), 73 P. 609; State v. Odell, 8 Ore. 30; Smith v. State (Ky.), 17 S.W. 182; State v. Mikesell, 30 N.W. 474.) Was not the instruction an explicit statement that the evidence of the accomplice, if believed by the jury, and corroborated upon any material fact, made out a complete case against the defendant and bound the jury to return a verdict of guilty? (McVeigh v. State, 43 Tex. Crim., 62 (S.W. 757); Hart v. State (Tex.), 82 S.W. 653; Rice v. State, 3 Tex. Crim., 451; Tipton v. State, 30 Tex. Crim., 532.)

With the exception of the supposed confession, which was incompetent and admitted in evidence over the objection of the defendant, there was no evidence which in any sense tended to prove the guilt of the defendant by connecting him with the crime charged, but that of the accomplice; but there was evidence which tended to show that the defendant, while living in the same town, had on different occasions prior to the date of the alleged murder visited the store of the deceased, and that he was in the same town on or about the same day that the crime was alleged to have been committed. This evidence, while it was material for the consideration of the jury in connection with the other evidence, did not corroborate the accomplice. (State v. Willis, supra; State v. Gillian, supra; People v. Morton, supra; State v. Odell, supra; Smith v. State, supra; State v. Mikesell, supra.)

If it be assumed that the supposed confession was competent and legally sufficient to corroborate the accomplice, the error of the above instruction would in no sense be mitigated; for, in addition to the above grounds of objection, the jury would have been left "to grope in the dark" as to what was and was not "corroboration" and "material facts," and, therefore, almost certain to rely upon the suspicious circumstances as the corroboration of the accomplice. (Smith v. State, 10 Wyo. 165-6; State v. McLain, 159 Mo. 340; State v. Miller, 100 Mo. 606; Minshall v. State (Tex.), 42 S.W. 990.)

The instruction that, in considering alleged admissions of defendant, what he said against himself the law presumes to be true, because against himself, is erroneous. (State v. Hudspeth (Mo.), 51 S.W. 487; State v. Hollingsworth, 56 S.W. 1089.) The same erroneous principle was again stated in another instruction, which was error for the additional reason that it laid undue stress upon the erroneous statement. (Hughes on Instr., 25; Sackett on Instr., 13; 12 Cyc., 649.) The seventeenth instruction contained the same erroneous principle, and was an invasion of the province of the jury by commenting on the evidence. (Pharr v. State, 7 Tex. Cr., 478; Dixon v. State (Ga.), 39 S.E. 846; Covington v. State, 7 id., 153.) The court should have given the instruction requested by the defendant, stating that Burney was an accomplice, and the necessity of corroboration. The law regards an accomplice, when called to testify, as an impeached witness, and his testimony as coming from a polluted source. (Johnson v. State, 4 Greene, 65; Ray v. State, 1 id., 316.) It was the duty of the jury not to convict upon the evidence of the accomplice until they were satisfied beyond all reasonable doubt that he was corroborated, by independent evidence, which in itself tended to prove the guilt of the defendant by connecting him with the commission of the crime charged in the information. (McNeally v. State, 5 Wyo. 69; Smith v. State, supra; People v. Morton (Cal.), 73 P. 609; State v. Willis, 9 Iowa 582; State v. Gillian, 3 Tex. Crim., 133; State v. Odell, 8 Ore. 30; Smith v. State (Ky.), 17 S.W. 182; State v. Mikesell (Ia.), 30 N.W. 474; Com. v. Holmes, 127 Mass. 445.) And to merely prove "that the crime was committed in the manner described by the accomplice" (Ency. Ev., 196), or "merely to connect the defendant with the accomplice, or other person participating in the crime" (Id., 107), would not be sufficient corroboration, "but evidence, independent of the testimony of the accomplice, must tend to connect him with the crime itself, and not simply with its perpetrators."

All confessions are prima facie incompetent, and, when called in question by the defense, the prosecution must first lay the foundation for their admission in evidence by proving affirmatively such facts as will exclude the hypothesis that they are incompetent. (12 Cyc., 481; Ency. L., 553-4; Ency Ev., 329-30; Greenleaf's Ev., Sec. 219; Wilson v. State (Ala.), 4 So., 383; State v. Watt (Md.), 57 A. 544; Amos v. State, 83 Ala. 1; State v. Garver, 28 La. Ann., 925; People v. Soto, 49 Cal. 67.) And if there is a reasonable doubt upon such preliminary proof, the defendant is entitled to the benefit of that doubt, and the confession must be excluded. (Bram v. U.S. 168 U.S. 549; Ellis v. State, 88 Ga. 44; Williams v. State (Miss.), 16 So. 296; Green v. State, 88 Ga. 516; State v. Garver, 28 La. Ann., 925; Amos v. State, 83 Ala. 1; Wilson v. State (Ala.), 4 So., 383; Watts v. State (Md.), 57 A. 544.) A confession, to be admissible in evidence, must proceed from the volition of the accused, in the sense that the motive which prompted the making of the...