State v. Brown

• Decision Date: 17 October 1933
• Docket Number: 6020
• Citation: 26 P.2d 131,53 Idaho 576
• Parties: STATE, Respondent, v. JAMES BROWN, Appellant
• Court: Idaho Supreme Court

26 P.2d 131

53 Idaho 576

STATE, Respondent, v. JAMES BROWN, Appellant

No. 6020

Supreme Court of Idaho

October 17, 1933

CRIMINAL LAW - TESTIMONY OF ACCOMPLICE - CORROBORATION, SUFFICIENCY OF - INSTRUCTIONS-CHARACTER WITNESS.

1. Instructions in criminal case must be construed together as a whole.

2. Refusal of requested instruction does not constitute error where subject matter thereof is fully and fairly covered by instructions given.

3. Defendant's instruction on corroboration of accomplices' testimony held properly refused, in view of instructions given which fully and fairly covered subject (I C. A., sec. 19-2017).

4. Accomplice may testify to fact same as any other witness, law merely requiring corroboration as basis for conviction (I. C A., sec. 19-2017).

5. Testimony corroborating testimony of accomplice need only tend to connect defendant with crime charged (I. C. A., sec 19-2017).

6. Evidence corroborating testimony of accomplice may be slight, need only go to one material fact, and may be entirely circumstantial (I. C. A., sec. 19-2017).

7. Defendant's instruction that identification of exhibits is insufficient corroboration of testimony of accomplices held properly refused, in view of evidence sufficiently corroborating testimony of alleged accomplices (I. C. A., sec. 19-2017).

8. Where it is uncertain under evidence whether witness is accomplice, question should generally be submitted to jury under proper instructions (I. C. A., sec. 19-2017).

9. Defendant's instruction that named witness was accomplice as matter of law held properly refused, in view of evidence presenting question for jury (I. C. A., sec. 19-2017).

10. Defendant's instruction that evidence corroborating testimony of accomplices must do more than raise grave suspicion of defendant's guilt to warrant conviction held properly refused, in view of other instructions fully and fairly covering subject (I. C. A., sec. 19-2017).

11. In prosecution for attempt to commit arson, failure to give defendant's instruction that named persons were accomplices as matter of law, though constituting error under evidence, held not prejudicial (I. C. A., sec. 19-2017).

12. Statements and actions of defendant after his arrest, testified to by witnesses, may constitute sufficient corroboration of accomplice's testimony to satisfy statutory requirements (I. C. A., sec. 19-2017).

13. In prosecution for attempt to commit arson, evidence held to sufficiently corroborate testimony of accomplices, and therefore sufficient to sustain conviction (I. C. A., sec. 19-2017).

14. Jury is sole judge of facts and credibility of witnesses in criminal case.

15. Witness called by defendant to testify to his good reputation may be cross-examined regarding rumors of specific charges of commission of acts inconsistent with character sought to be established.

16. Cross-examination of witness called by defendant to testify to his good reputation may go to any matter inconsistent with reputation, and may take wide scope.

17. Cross-examination of witness called by defendant to testify to his good reputation, regarding knowledge of defendant's plea of guilty to contributing to delinquency of minor, held not improper.

18. Admitting testimony of accomplices connecting defendant with perpetration of offense through declarations of alleged accomplice held not error (I. C. A., sec. 19-2017).

APPEAL from the District Court of the Ninth Judicial District, for Jefferson County. Hon. C. J. Taylor, Judge.

Appeal from a judgment of conviction for the crime of attempt to commit arson. Affirmed.

Affirmed.

W. A. Ricks, for Appellant.

Where it is apparent that a witness is an accomplice it is the manifest duty of the court to so charge the jury for the reason that it is a question of law. (Sheppard v. State, 63 Tex. Cr. 569, 140 S.W. 1090; Sessions v. State, 37 Tex. Cr. 58, 38 S.W. 605.)

The evidence in this case is wholly insufficient to justify a verdict of guilty for the reason that there is no corroborative evidence. (People v. Davis, 210 Cal. 540, 293 P. 32.)

C. A. Bandel and J. H. Peterson, for Respondent.

It is not necessary that accomplice be corroborated in every detail. Law contemplates that some weight should be given testimony of an accomplice. No general rule can be stated with respect to quantum of evidence corroborating accomplice's testimony which is necessary to convict. (State v. Smith, 30 Idaho 337, 164 P. 519; State v. Gillum, 39 Idaho 457, 228 P. 334, 336.)

The law is well settled that the testimony of an accomplice may be corroborated by circumstantial evidence. The conduct of the accused may be examined for corroborating circumstances, and if from all the circumstances of the case the guilt of the accused may be fairly inferred, the corroboration is sufficient. (People v. Knoth, 111 Cal.App. 250, 295 P. 577; People v. Yeager, 194 Cal. 52, 229 P. 40.)

WERNETTE, J. Budge, C. J., and Givens, J., concur. MORGAN, J., HOLDEN, J., Dissenting.

OPINION

WERNETTE, J.

The appellant, James Brown, was convicted of the crime of attempt to commit arson. A new trial was denied by the district court and this appeal is from the judgment of conviction and order denying a motion for a new trial.

The necessary facts to a decision of this case will be discussed in the opinion.

Appellant assigns numerous errors, which will be considered in their order. Appellant's first assignment is that the court erred in not giving his requested instruction number 1, as follows:

"You are instructed that the corroboration which the statute demands in this case, independent of the testimony of the accomplices must not only show that a crime has been committed, but that defendant is implicated in its commission."

The court did not err in refusing this instruction, the same having been fully covered by instructions number 12, 13 and 14, given by the court, which correctly state the law, as follows:

"Instruction No. 12.

"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."

"Instruction No. 13.

"You are instructed that an accomplice cannot, either by his own declarations, or otherwise, corroborate himself, nor can an accomplice corroborate an accomplice."

"Instruction No. 14.

"No general rule can be stated with respect to the quantum of evidence corroborating an accomplice's testimony which is necessary to warrant a conviction; each case must be governed by its own circumstances, keeping in view the nature of the crime, the character of the accomplice's testimony, and the general requirement with respect to corroboration. Where the circumstances point to the guilt of the accused, independent of the accomplice's testimony, such circumstantial evidence may be sufficient corroboration of the accomplice's testimony to sustain a conviction. It is not necessary that the testimony of an accomplice be corroborated in every detail. Any corroborative evidence legitimately tending to connect the defendant with the commission of a crime may be sufficient to warrant a conviction, although standing by itself it would not be sufficient proof of defendant's guilt.

"And while it is not necessary that an accomplice be corroborated in every respect, it is necessary that there be corroborating evidence upon some material fact or circumstance which, in itself, and without the aid of the testimony of the accomplice, tends to connect the defendant with the commission of the offense." (Section 19-2017, Idaho Code Annotated.)

All instructions must be considered and construed together, and if the instructions, as a whole, correctly state the law, the judgment will be affirmed. It is not error to refuse to give a requested instruction where the subject matter thereof is fully and fairly covered by the instruction given by the court. (State v. Cosler, 39 Idaho 519, 228 P. 277.)

Appellant next complains that the court erred in refusing to give his requested instruction number 3, which reads as follows:

"You are instructed that the alleged identification of the exhibits introduced in evidence is, as a matter of law, insufficient corroboration of the testimony of Bert Rowe or the other accomplices."

It is the contention of appellant that no one but Bert Rowe, confessed accomplice, identified the exhibits consisting of gasoline cans and other paraphernalia used in the commission of the crime. The record does not bear out such contention. The sheriff identified the exhibits, consisting of gasoline cans, rugs and gunny sacks, as those found at the Riverside Gardens soon after the attempt to commit the offense.

L. M. Founds, who was operating a gasoline service station, also gave substantial testimony tending towards identifying the exhibits, having seen gasoline cans and other paraphernalia in the automobile driven by Bert Rowe shortly before the commission of the crime, all of which, as described by the witness, were similar, if not identical to that found at the Riverside Gardens immediately after the crime.

Emil Zitlau, also testified to sufficient facts pertaining to the exhibits to identify the same. Appellant takes the position however, that Zitlau was an accomplice and that one accomplice cannot corroborate another accomplice. The question as to whether he was an accomplice was for the jury to decide, as hereinafter pointed out, and it is quite likely the jury found that he wasn't. But assuming, yet not conceding, that he was, there is nothing in the law to...