People v. Chadwick

• Decision Date: 04 February 1891
• Citation: 7 Utah 134,25 P. 737
• Court: Utah Supreme Court
• Parties: PEOPLE OF THE TERRITORY OF UTAH, RESPONDENT v. JAMES CHADWICK AND ANOTHER, APPELLANTS

25 P. 737

7 Utah 134

PEOPLE OF THE TERRITORY OF UTAH, RESPONDENT v. JAMES CHADWICK AND ANOTHER, APPELLANTS

Supreme Court of Utah

February 4, 1891

APPEAL from an order denying a new trial and from a judgment of conviction of the district court of the first district. The opinion states the facts.

Section 4391, 2 Comp. Laws, 1888, 563, is: "All persons who after full knowledge that a felony has been committed conceal it from the magistrate, or harbor and protect the person charged with or convicted thereof, are accessories."

Section 4949, 2 Comp. Laws, 1888, 690, is: "An accessory to the commission of a felony may be indicted, tried and punished though the principal may be neither indicted nor tried."

Section 5049, 2 Comp. Laws, 1888, 710, is: "A conviction cannot be had on the testimony of an accomplice, unless he is corroborated by other evidence, which in itself and without the aid of the testimony of the accomplice, tends to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof."

Section 4390, 2 Comp. Laws, 1888, 563, is: "All persons concerned in the commission of a crime, whether it be felony or misdemeanor, and whether they directly commit the act constituting the offense or aid and abet in its commission or not being present, have advised and encouraged its commission, and all persons counseling, advising, or encouraging children under the age of fourteen years lunatics or idiots to commit any crime, or who, by fraud, contrivance or force, occasion the drunkenness of another for the purpose of causing him to commit any crime, or who, by threats, menaces, command or coercion compel another to commit any crime, are principals in any crime so committed."

Section 5033, 2 Comp. Laws, 1888, 708, subd. 6, is: "The judge may then charge the jury and must do so on any points pertinent to the issue, if requested by either party; and he may state the testimony and declare the law; and in each case he shall inform the jury that they are the sole judges of the credibility of the witnesses, of the weight of the evidence, and of the facts.

Affirmed.

Mr. George Sutherland and Mr. Orlando W. Powers, for the appellant.

Mr. David Evans, Assistant U. S. Attorney, for the respondent.

MINER, J. ZANE, C. J., and ANDERSON, J., concurred.

OPINION

MINER, J.:

The defendants, Chadwick and Whipple, were jointly indicted on the 4th day of March, 1889, charging them with the felonious larceny of a cow about the 15th day of January, 1888. They were tried together, September 26, 1890, and both found guilty by the verdict of a jury, and a motion for a new trial was made and denied. The errors assigned, upon which a reversal of the judgment is asked, are: (1) Insufficiency of the evidence to justify the verdict; (2) the admission of improper testimony by the court against the defendants' objection; (3) misdirection of the court to the jury as to the possession of the evidences of the crime, as to the testimony of the accomplice, and in failing to charge the jury that they were the sole judges of the credibility of the witnesses, of the weight of the evidence, and of the facts, as provided by law. We will consider these questions as they were stated in the defendants' brief.

1. As to the insufficiency of the evidence to justify the verdict. On examination of the evidence given in the case, we find there was some evidence of a larceny given before the jury, and facts and circumstances sufficiently shown to justify the court in submitting the case to the jury. Where there is evidence introduced tending to show guilt, this court will not review the weight of the testimony, nor the credit of the witnesses. These are purely questions for the jury. In this connection, however, it is claimed by defendants that without the testimony of one William Green, a witness for the prosecution, there would have been no evidence upon which the jury could convict; and that Green was an accomplice, or at least an accessory after the fact, in the alleged crime, and that therefore his testimony could not be considered testimony, in any respect, except when it was corroborated, as provided by stated.

In reviewing this question, it is not necessary to go over the testimony in the case. We are satisfied that if Green had not been used as a witness at all, there was still sufficient testimony to go to the jury upon the question of the defendants' guilt; and, had it been otherwise, the testimony disclosed that Green was corroborated in most of the important parts of his testimony. But it is not claimed, from any evidence pointed out in the record, that Green was an accomplice, or that he knew of or had any hand or complicity in the alleged larceny at the time or before the offense was committed, or that he aided, abetted, or participated in its commission. He knew of certain facts and circumstances after the time of the alleged larceny that tended to show guilt on the part of the defendants; but it cannot be urged that Green was shown to have had full knowledge of the larceny. This being the case, the most that defendants could claim, and what the defendants claim in their brief, is that Green was an accessory after the fact. If he was an accessory after the fact, under section 4391, Comp. Laws 1888, he could not have been an accomplice, under section 4390. Our statute makes a clear distinction between the two offenses. As an accessory after the fact, he could not be indicted jointly with the principal defendant, nor tried with him, but, if tried at all, he must be tried separately, under sections 4391, 4949, Comp. Laws 1888. Com. v. Wood, 11 Gray 93; Com. v. Boynton, 116 Mass. 343; Com. v. Drake, 124 Mass. 21; U.S. v. Kershaw, 5 Utah 618, 19 P. 194. If he was an accessory after the fact, he could not become a partaker of the guilt, as there would be no union of criminal intent and act. 1 Bish. Crim. Law, (3d ed.) § 692.

One who is a principal cannot be an accessory after the fact. A person is an accessory after the fact only after he has full knowledge that a felony has been committed, and then conceals that knowledge from a magistrate, or harbors and protects the person charged or connected therewith. Comp. Laws 1888, § 4391. If, then, Green was not a principal or accomplice in this crime, under section 4390, it was not necessary that his testimony should have been corroborated, under section 5049. in order to give it such weight as would ordinarily attach to it. Nor do we think it was the intention of the legislature to require the testimony of an accessory after the fact to be corroborated, under the provisions of section 5049, before his testimony could be credited without corroboration. People v. Barric, 49 Cal. 342; People v. Farrell, 30 Cal. 316; Com. v. Boynton, 116 Mass. 343; Com. v. Blood, 4 Gray 31; State v. McKean, 36 Iowa 343; 1 Greenl. Ev. § 382. The court was not required to submit any charge upon that subject to the jury; the question was not in the case. Notwithstanding this, the question as to how far Green was corroborated, and whether he was an accomplice, was left to the jury. The charge was favorable to the defendants, and they cannot complain.

The second assignment of error has reference to the admissibility of evidence introduced by the prosecution. Witness Green had testified that he asked defendant Chadwick for wages one day after the alleged larceny, and Chadwick replied that "he didn't have to pay me;" that he would "turn everything over to his wife. "Witness told him, "All right." Chadwick replied, "saying for me to go ahead; that I didn't have none the best of it." Whereupon the people's attorney asked Green the following question: "Question. Do you know what that had reference to?" Objected to by defendant as calling for an opinion of the witness. The objection was overruled by the court, and an exception was taken. The question, as it appears upon the record, was not subject to the objection made. It simply called for an answer "yes," or "no." But that and another similar question was answered by the witness, detailing the facts; which were proper, in connection with the other testimony in the case.

Error is also assigned...