State v. Dana

• Decision Date: 15 October 1887
• Parties: STATE v. FOSTER S. DANA
• Court: Vermont Supreme Court

10 A. 727

59 Vt. 614

STATE v. FOSTER S. DANA

Supreme Court of Vermont, Washington County

October 15, 1887

INDICTMENT under section 4246, R. L., charging the respondent with having sexual intercourse with one Minnie C. Dana, the daughter of a brother of said respondent. Trial by jury September Term, 1886, POWERS, J., presiding. Verdict, guilty. The respondent moved in arrest, but the motion was overruled.

The said Minnie C. Dana was the principal witness against the respondent. The testimony on the part of the State tended to show that said Minnie C. was delivered of a child; that the respondent and Minnie C. lived near each other; and it was not controverted but that she was frequently at his house and that they frequently met. The said Minnie C. testified that on a certain time, when she was at his house, he carried her into a bed-room, and against her will had sexual intercourse with her; that a few weeks afterwards, when she was at his house, and in the same bed-room, the respondent came in, closed the door by putting the blade of a jack-knife over the latch in the door and again had sexual intercourse with her; and that, at a certain time after she knew she was pregnant, she met him near his house, not far from the "dugaway," so called, told him of her condition and asked him to help her. The mother of Minnie C. testified that she saw her and the respondent at the "dugaway," but that she heard no talk. The respondent admitted that he had the jack-knife, and did not deny that he met her at the "dugaway," but denied that she told him that she was pregnant on that or any other occasion, and claimed that he knew nothing about the matter until he was arrested. The court charged, in part:

"Something has been said in the argument of this case respecting the testimony of this particeps, this girl Minnie. It is said that she is an accomplice. And counsel request us to charge you that you have no right to convict a person upon the uncorroborated testimony of an accomplice.

"Well, it is true that there has been very much discussion in the books upon this subject; and there may be perhaps a seeming difference of sentiment respecting it. But the courts in this State have long ago laid down the rule that it is not precisely accurate to say that no conviction can be had upon the sole testimony of an accomplice. The question is one for the jury to consider in view of the fact that the accomplice is guilty of the same crime as the person on trial. It is always the province and right of the jury to judge of the credibility of testimony."

Motion in arrest of judgment overruled.

S. C. Shurtleff and J. G. Wing, for the respondent.

The said Minnie C. was an accomplice, and the court should have charged the jury that there could be no conviction on her uncorroborated testimony. Rap. & L. Dic.; 47 Ill. 152; United States v. Jones, 2 Wheeler Crim. Cas. 451; People v. State, 9 Cow. 707; Rex v. Neal, 32 E. C. L. 555; Rex v. Addis, 25 E. C. L. 488; Reg. v. Dyke, 34 E. C. L. 723; Reg. v. Jellyman, 34 E. C. L. 635; Roscoe Cr. Ev. 121. The evidence on the part of the State tended to prove rape; and a conviction for incest would not be a bar to a prosecution for rape. State v. Smith, 43 Vt. 324. As to corroborative evidence, see 1 Greenl. Ev. s. 380. The indictment was not sufficient. It should have been alleged that the respondent had carnal knowledge of, etc.: Heard Cr. L. 723; Bishop Forms, 564; that he had knowledge of the relationship existing between him and the accomplice. Rea v. Harrington, 58 Vt. 181; Lampkins v. Justice, 1 Ind. 560; Griggs v. Vickery, 12 Ind. 549.

E. W. Bisbee, State's Attorney, for the State.

The indictment was sufficient. R. L. ss. 2306, 4246; Bish. St. Cr. 732; Hood v. State, 6 Ind. 263; Commonwealth. v, Elwell, 2 Met. 190; Commonwealth v. Smith, 103 Mass. 444; Hicks v. People, 10 Mich. 395. Minnie C. Dana was not an accomplice. Whar. Cr. Ev. 440. But if an accomplice, she was a competent witness. State v. Colby, 51 Vt. 291. It only affected her credibility; and a conviction may be had upon her uncorroborated testimony. 1 Phil. Ev. 89; 1 Greenl. Ev. s. 380; 1 Bish. Cr. Proc. s. 1169; 1 Chit. Cr. L. 604; Cunningham v. State, 31 Me. 355; Litchfield v. State, 58 Me. 267; Commonwealth v. Price, 10 Gray, 474; Commonwealth v. Brooks, 9 Gray, 299; People v. Jenness, 5 Mich. 305; Gray v. People, 25 Ill. 344; State v. Williamson, 42 Conn. 261; 25 La. Ann. 522; 52 Miss. 923.

OPINION

WALKER, J.

This is an indictment under section 4246, R. L., which provides that persons, between whom marriages are prohibited by sections 2306-7, R. L., who intermarry, or who commit fornication with each other, shall be punished as in case of adultery. The indictment is in two counts, each of which charges that the respondent, Foster S. Dana, "did commit fornication with one Minnie C. Dana, the said Minnie C. Dana then and there being the daughter of the brother of the said Foster S. Dana, the said Foster S. Dana and the said Minnie C. Dana being persons between whom marriage is prohibited," etc.

The points urged in behalf of the respondent in the argument of counsel are raised upon exceptions taken to the charge of the court and upon the respondent's motion in arrest of judgment.

The respondent's counsel requested the court to charge the jury in accordance with the following requests:

1. That as this indictment is framed Minnie C. stands as an accomplice.

2. That it is the duty of the court to advise the jury that when the crime charged is supported only by the uncorroborated testimony of an accomplice, it is the duty of the jury to acquit the respondent.

3. That facts and circumstances, about which there is no dispute, which are testified to by an accomplice, and which do not necessarily tend to fix the crime charged upon the respondent, are not corroborating evidence.

4. That in this case the fact that the accomplice was admitted to be at the defendant's house, or that he on several different occasions met her and talked with her, or that at that time he had a jack-knife, and all similar facts and circumstances, about which there is no conflicting evidence do not tend in this case to corroborate her.

5. That all facts or circumstances are to be construed as innocent unless they necessarily tend to show guilt of themselves, or are so connected with other facts as to show guilt.

I. We think the respondent has no ground of complaint of the charge of the court in respect to the subject-matter of his first two requests, which are considered below together, and that there was no error in the charge of the court as given, nor in its refusal to charge as requested in said two requests.

The court very fully instructed the jury as to what facts would constitute the complainant, Minnie C. Dana, a voluntary accomplice in the crime charged, and that if they found such facts upon the evidence, then she was an accomplice; and properly advised the jury that although they had a right to convict the respondent upon the uncorroborated testimony of an accomplice implicated in the crime charged, if it satisfied them of his guilt beyond a reasonable doubt, yet they ought not to convict him upon the testimony of an accomplice alone, unless they found in the story of the accomplice, itself, such inherent evidence of truthfulness that they were forced to believe it; and that they ought to proceed with the greatest caution in rendering a verdict of guilty upon the uncorroborated statement of an accomplice; that such a witness is not entitled to the same amount of credit as a witness who is not clouded by any such character; and that ordinarily when the testimony of an accomplice becomes material to establish the guilt of a respondent, there should be corroboration of it in some material respect, in some respect that goes to the essence of the crime itself, before it would be safe to render a verdict of guilty. The charge in other respects fully advised the jury as to the caution they should exercise in giving credit to an accomplice in a crime; and that ordinarily jurors should cast about for corroborative proof before they convict upon the testimony of an accomplice.

There is no rule of common law nor of the statute law of this State, that a person shall not be convicted on the testimony of an accomplice unless corroborated by other evidence. In some states such a rule may exist either from a code or statute law.

It is always a question for the jury, who are to pass upon the credibility of the accomplice, as they must upon that of every other witness. His statements should be received with great caution, and the court, as the court did in this case should always so advise; yet if the testimony of the accomplice obtains full credit with the jury, and they are fully convinced of its truth, they should give the same effect to his testimony as should be allowed to an unimpeached witness, who is in no way implicated in the offense. Such testimony, if believed by the jury, will warrant a conviction. In all cases where the prosecution depends upon the uncorroborated testimony of an accomplice, the court, as before stated, should advise great caution on the part of the jury in giving credit to it; but the jury are not to be advised or instructed as matter of law that the prisoner in such case must be acquitted. It is not the duty of the court to advise the jury as to their conclusions upon the evidence which has been given on trial for them to consider and weigh in finding whether the respondent is guilty or not guilty of the offense charged. The accomplice is a competent witness, and his testimony must receive such credit and weight as the jury find it entitled to. If the jury find his testimony to be true, the consequence is inevitable;...