Shepherd v. State

• Citation: 254 Ind. 404,22 Ind.Dec. 200,260 N.E.2d 563
• Decision Date: 27 July 1970
• Docket Number: No. 1069S240,1069S240
• Parties: Rodney R. SHEPHERD, Appellant, v. STATE of Indiana, Appellee.
• Court: Supreme Court of Indiana

Page 563

260 N.E.2d 563

254 Ind. 404

Rodney R. SHEPHERD, Appellant, v. STATE of Indiana, Appellee.

No. 1069S240.

Supreme Court of Indiana.

July 27, 1970.

William E. Erbecker, James Manahan, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Wm. F. Thompson, Deputy Atty. Gen., for appellee.

HUNTER, Chief Justice.

Appellant ws charged by affidavit with the crime of theft. Upon a plea of not guilty, trial was had before the court and appellant was found guilty as charged and sentenced to six months imprisonment at the Indiana State Farm.

On this appeal, the sole question argued is that the evidence is insufficient and consequently the verdict is contrary to law. More specifically, it is appellant's contention that the uncorroborated evidence of an accomplice is insufficient as a matter of law to convict a criminal defendant in that the admission of such evidence is violative of appellant's constitutional right to due process of law.

Since the issue as framed relates only to the propriety of admitting evidence of an accomplice and no independent argument is made as to the sufficiency of the evidence otherwise admitted, we need not burden this opinion with a recitation of the facts. Suffice it to say that the testimony of the two accomplices called to the witness stand is essential to appellant's conviction in this case. Our determination on the question raised as to the admissibility of that evidence therefore will be wholly dispositive.

The law in Indiana on the question of admitting the testimony of an accomplice has long been settled. Ind.Ann.Stat. § 9--1603 (1956 Repl.) specifically provides that an accomplice, upon giving consent, shall be competent to testify. Further, it has been held in this state the a conviction may be sustained on the uncorroborated testimony of an accomplice. Fitzgerald v. State (1966), 248 Ind. 19, 219 N.E.2d 603; Smith v. State (1961), 241 Ind. 601, 174 N.E.2d 47; Tungate v. State (1958), 238 Ind. 48, 147 N.E.2d 232; Key v. State (1956), 235 Ind. 172, 132 N.E.2d 143. Although it has been said that the testimony of an accomplice should be closely scrutinized and cautiously received (Sylvester v. State (1933), 205 Ind. 628, 187 N.E. 669), the weight to be given such evidence is a matter for the jury or trial judge and not for an appellate tribunal. Asher v. State (1969), Ind., 244 N.E.2d 89; Black v. State (1965), 246 Ind. 550, 207 N.E.2d 627; Mattingly v. State (1957), 236 Ind. 632, 142 N.E.2d 607.

Notwithstanding the above cited authority, it is appellant's contention that to admit the evidence of an accomplice is to violate his right to procedural due process under the United States Constitution. The argument apparently derives from the fact that at common law, according to appellant, the uncorroborated testimony of an accomplice was held to be insufficient as a matter of law to sustain a conviction. Consequently, appellant asserts that since the present state of the law is totally contrary to the common law standards of proof which prevailed at the time the Bill of Rights were adopted, his Fifth and Fourteenth Amendment right to due process has been abridged.

Although we are not unimpressed by appellant's quaint argument, there are at least three reasons why it cannot be successfully maintained. First of all, we cannot agree with what appellant's argument necessarily implies which is that the Fifth and Fourteenth Amendment due process clauses were intended to incorporate and fossilize the common law as it existed at the time of their adoption. To so hold would perforce require invalidation of the many changes and modifications of the common law effected since that time. Examples need not be cited to demonstrate the undesirable consequences which would obviously accrue. We need not remind this appellant that many of the procedural safeguards afforded him during the course of his trial were a direct result of expended concepts no where found in the common law at the time the Fifth or Fourteenth Amendments were made law.

Secondly, even were we to indulge in the patently unsupportable supposition that the due process clauses found in the Federal Constitution were intended to embody common law concepts as then existing, we would nevertheless be required to recognize that during that particular time in the development of the law, an accomplice's testimony was considered competent and admissible. See generally, 7 Wigmore on Evidence § 2056 et seq. (1940). As noted by Wigmore, it was repeatedly ruled during the 1600s and 1700s that the testimony of such witness was to be admitted. Eventually, as courts began to appreciate the concept of qualitative sufficiency, it became apparent that a cautionary instruction relative to an accomplice's testimony might be desirable. Indeed, several states require by statute such an instruction today. However, it should be noted that during this entire time period, the testimony of an accomplice was competent and considered sufficient even though uncorroborated to convict an appellant. In our opinion, appellant's bland assertion that our case law precedent, holding that a defendant may be convicted on the uncorroborated evidence of an accomplice, is totally contrary to common law standards of proof prevailing at the time the Federal...