Smith v. State

• Decision Date: 11 February 1902
• Citation: 67 P. 977,10 Wyo. 157
• Parties: SMITH v. STATE
• Court: Wyoming Supreme Court

67 P. 977

10 Wyo. 157

SMITH v. STATE

Supreme Court of Wyoming

February 11, 1902

ERROR to the District Court, Converse County, HON. RICHARD H SCOTT, Judge.

James Smith and Lewis Smith, two brothers, were jointly informed against for the larceny of live stock. James was acquitted and Lewis was convicted. Together with Thomas Black, they were working on a ranch, Black being under the direction of Lewis Smith, as he testified. Black was the principal witness for the State, and testified that the animal in question was killed by the Smith brothers, that James shot at the animal first and wounded it, and that Lewis shot at and killed it. The witness assisted Lewis Smith, as he testified, in driving in the steer from the range. He testified further that the defendant, Lewis Smith, cut out the brand and cut off the ears of the animal and buried them. It was claimed by the prosecution that until this was done Black had no suspicion that a crime was being committed. The defendant, Lewis Smith made a motion for new trial, which was overruled, and he brought the case here on error. The other material facts are set forth in the opinion.

Reversed.

F. H Harvey and C. F. Maurer, for plaintiff in error.

The court seems to have instructed the jury that they might convict on the uncorroborated testimony of the accomplice. It may be true that it rests within the power of a jury to so convict; but the court should not so instruct them. On the contrary, they should be instructed that they should not convict on such uncorroborated testimony. (Underhill Crim. Ev., 73; Allen v. State, 10 O. St., 305; 1 Greenleaf Ev., 380; Lindsay v. People, 63 N.Y. 154; 1 Ency. L., 399; McNeally v. State, 5 Wyo., 69.) Many states have adopted statutes expressly forbidding a conviction on the unsupported evidence of an accomplice. The admonition of experience, as demonstrated by such statutes, is that the common law rule was not stringent enough to conserve the ends of justice; and our courts ought not adopt a rule of practice which, instead of following in the wake of the humane and liberal legislation aforesaid, actually takes from the common law rule whatever efficacy it may have had. The finding of the hide and brand where the witness Black reported them to have been hidden did not amount to corroboration. (McNeally v. State, 5 Wyo., 69.) The ranch on which the hide, head, &c., were found belonged to one Mrs. Merrill and was her home. At the time they were found Lewis Smith was not in possession or in charge of the ranch. Clearly there is no ground for the contention that recently stolen property was found in his possession.

W. F. Mecum, County and Prosecuting Attorney, and J. A. Van Orsdel, Attorney General, for the State.

The witness Black, under the evidence, was not what is known in law as an accomplice. The evidence discloses that, although he was present at the time the steer in question was killed, he did not suspect that a crime had been committed until after the steer had been killed and the brands cut out. The crime in this case was the stealing of the animal in question. There is no evidence of any intent on the part of Black to commit this crime, nor even guilty knowledge of the commission of the crime. The fact that he afterwards assisted the defendant in burying the head and horns is not, we think, such an act as would make him an accessory after the fact. Certainly, upon the evidence disclosed by the record, he was not the principal nor a partner in the crime to the extent of becoming an accessory. One who is merely present at the commission of a crime, but in no way aids or participates therein, is not an accomplice. (Allen v. State, 74 Ga. 769; Lowry v. State, 72 Ga. 649; State v. Reader, 60 Iowa 527; State v. Cox, 65 Mo. 290.)

The jury are the sole judges as to whether or not Black was an accomplice. This fact is one to be found by the jury, and neither the trial court nor an appellate court will presume to deprive the jury of their prerogative in this matter, and arbitrarily declare the witness Black an accomplice in the commission of the crime charged. It is hardly necessary to cite authorities in support of this proposition. "If there is evidence tending to show that a witness is an accomplice, the question whether he is an accomplice or not must be submitted to the jury as a question of fact." (Enc. Law, 2d Ed., Vol. 1, p. 293, and cases cited.)

From an examination of the evidence, as disclosed by the record in this case, it will be found that the testimony of the witness Black was corroborated in a number of ways. It was corroborated by the accurate description of the place where the head, hide and brands could be found, and where they were found afterwards by the officers; by the defendant's possession of the meat, his keeping it locked in a building to which he alone carried the key; by his using and consuming it without accounting in any way for such possession; by defendant trying to lay the crime on the witness Schwartz, and by misrepresentation and falsehood trying to influence Schwartz to leave the country; by the proof that only Lewis and James Smith and the witness Black were on the ranch on the day the steer was killed; by the admission of the co-defendant James Smith that he was present at the ranch on the day the steer was killed, and at the same time testifying that he knew nothing of the transaction; by the actions of James Smith when he was arrested, as detailed in the testimony, by officer Cook. (8 Gen. Dig., p. 1109; Unsell v. State, 45 S. W., 902; State v. Kennedy, 55 S. W., 293; State v. Calder, 59 P. 903 (Mont.); Wilkerson v. State, 57 S. W., 956.) The jury had a right to convict on the uncorroborated testimony of an accomplice. (State v. Kennedy, 55 S. W., 293; Lawhead v. State, 65 N. W., 779; People v. Nunn, 79 N. W., 800; State v. Horner, 41 A. 139; State v. Kennedy, 154 Mo. 268; Sackett Instr., 480; Roscoe Crim. Ev., 129.) It is usual for the trial court to instruct the jury that they should require corroborating evidence to convict, but the verdict is lawful, even though the testimony of an accomplice is uncorroborated.

The instructions as given correctly stated the law on the subject. The case of McNeally v. State, 5 Wyo., 69, is not applicable, as there the court had instructed the jury that certain evidence was strong corroborating evidence.

CORN, JUSTICE. POTTER, C. J., and KNIGHT, J., concur.

OPINION

CORN, JUSTICE.

The defendant, Lewis Smith, was convicted of the larceny of a steer. The case for the prosecution depended upon the testimony of an accomplice, Thomas Black, and it is claimed there was error in the charge of the court touching the duty of the jury in considering his testimony.

The court, at the request of the State, gave to the jury four instructions upon the subject, as follows:

"1. It is claimed on the part of the defense that Thomas Black, one of the State's witnesses, is an accomplice in the crime; therefore, the court will instruct you upon the subject of an accomplice. An accomplice is defined as one who is associated with others in the commission of a crime, all being principals, and the test in general to determine whether a witness is or is not an accomplice is the inquiry; could the witness himself have been indicted for the offense either as principal or as accessory? The question of whether a witness is an accomplice or not is for the jury to determine.

"2. Should you find the said Thomas Black to be an accomplice in the crime, and also find that his testimony is corroborated by some other evidence which tends to confirm his testimony upon a point material to the issue, in the sense that it tends to prove the guilt of the defendant, and if it appears that the said Thomas Black has testified to the truth in some material particular, the jury may infer that he has in others.

"3. The credibility of an accomplice is a question for the jury, as is that of any other witness, and you have a perfect right to accept it or reject it, in part or in toto. Such evidence, however, coming as it does from a polluted source, should be received with great caution and closely examined. It is proper for you to consider whether his testimony is prompted by a promise of leniency or a hope of reward, or as a means of obtaining revenge for a supposed injury. Yet, if, notwithstanding any of these motives, you find there were such, you believe he speaks the truth, and such evidence is corroborated upon any material fact, you should find the defendant guilty.

"4. You are instructed that the witness, Black, is in law what is known as an accomplice. You are further instructed that an accomplice's testimony should be received with care and scrutiny, owing to the fact that where the State relies upon the testimony of an accomplice for conviction there is an implied agreement to extend immunity to such accomplice by reason of his giving testimony; yet you are instructed that if you believe beyond a reasonable doubt that the testimony given by the said Black is true, that you have a right, upon such evidence, to find the defendants, or either of them, guilty, whether the testimony of such accomplice be corroborated or not."

These were all the instructions given concerning the duty of the jury in acting upon the testimony of an accomplice. The defendants requested the following, which was refused: "The jury are instructed...