State v. Gilbert
| Decision Date | 07 October 1943 |
| Docket Number | 7109 |
| Citation | 142 P.2d 584,65 Idaho 210 |
| Parties | STATE OF IDAHO, Respondent, v. EARL GILBERT, Appellant |
| Court | Idaho Supreme Court |
Rehearing denied November 15, 1943.
An "accomplice" is a person concerned in the commission of a crime, whether he directly participates in the commission of the act constituting the offense, or aids and abets in its commission, or, not being present, has advised or encouraged its commission. (I.C.A sec. 19-2017.)
Where witness in burglary prosecution did not become connected with the crime until after its commission, he was an "accessory after the fact" and not an "accomplice", within meaning of statute prohibiting conviction on testimony of accomplice unless corroborated by other evidence. (I.C.A., sec. 19-2017.)
The question of the sufficiency of testimony of an accessory after the fact and the weight to be given it is for the jury. (I.C.A., sec. 19-2017.)
In criminal prosecution based largely on testimony of accessory after the fact, instruction on credibility of witnesses and weight to be given their testimony, and the right to disregard testimony of witnesses testifying falsely, and instruction on subject of testimony of accomplices, amply protected defendant from likelihood of damage by testimony from such a disreputable source. (I.C.A., sec. 19-2017.)
Where the circumstances point to the guilt of accused, independent of accomplice's testimony, such circumstantial evidence may be sufficient corroboration of accomplice's testimony to sustain conviction. (I.C.A., sec. 19-2017.)
It is not necessary that the testimony of an accomplice should be corroborated in every detail, but any corroborative evidence legitimately tending to connect the defendant with commission of a crime may be sufficient to warrant a conviction, although standing by itself it would not be sufficient. (I.C.A., sec. 19-2017.)
Where evidence is in conflict, but is sufficient to support conviction, verdict of the jury will not be disturbed.
Burden of establishing alleged error in refusing appellant's counsel the right to refer to or to explain in his argument to the jury the law applicable to testimony of accomplices, was upon appellant. (I.C.A., sec. 19-2017.)
In a criminal case, the purpose of argument is not merely a discussion of the facts, for to so limit the argument is to deprive defendant of the right to have counsel make proper argument and discussion of the application of the laws to the facts shown to exist.
The constitutional guarantee to one accused of crime of the right to "defend with counsel" includes the right to have counsel make a proper argument to the jury. (Const., art. 1, sec. 13.)
In a criminal case, the right of argument contemplates liberal freedom of speech and range of discussion confined only to bounds of logic and reason.
An accused has the right to have his counsel argue the law in so far as the law is not misstated or inconsistent with the court's instruction.
In criminal prosecution, where the applicable law was properly stated in court's instructions and it did not appear that the argument of defendant's counsel relating to the law had been stricken, and no instruction given to disregard argument, any error of court in stating that argument should be confined to the facts was not prejudicial.
Where the evidence as to the theft of meat was uncontradicted, and defendant was in possession of the meat immediately following the theft, in absence of satisfactory explanation as to the facts of possession, a presumption was raised that defendant committed the larceny.
Where the evidence of defendant's guilt is satisfactory and is such as ordinarily produces moral certainty or conviction in an unprejudiced mind, and the result would not have been different had an error in the trial not been committed, the case will not be reversed. (I.C.A., sec. 19-2719.)
Appeal from the District Court of the Fifth Judicial District, for Franklin County. Hon. Jay L. Downing, District Judge.
Conviction affirmed.
P.J. Evans, for appellant.
Bert H. Miller, Attorney General; J.R. Smead, Assistant Attorney General; and Ben B. Johnson, Prosecuting Attorney for Franklin County, for respondent.
That the evidence is insufficient to justify the verdict of the jury.
This point is particularly strong in view of the fact that the only evidence in the record at all corroborating the testimony of the accomplices is that of state witness McVey, and by his own testimony it is shown that he did not know where the meat came from that he says was in his place, his admission that defendant never told him that it was stolen; his criminal record; that he was rewarded for his testimony by being permitted to keep the pig alleged to have been stolen, and by not being prosecuted for receiving said stolen property.
The law is well settled in this state, that;
"TESTIMONY OF ACCOMPLICE-CORROBORATION.-A conviction can not 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." (I.C.A., 19-2017 and annotations.)
One accomplice cannot corroborate another.
"It is also held that one accomplice cannot corroborate another... merely adding to the number of broken reeds gives no increase in strength." (98 Am.St.Rep. 171 e; 20 Am. Juris. No. 1239, P. 1091.)
The corroboration must be on a material part of his story.
"A third line of decisions require corroboration of the accomplice, not alone in a material part of his story, but in such part of his testimony as goes to connect the accused with the commission of the crime." (20 Am. Jur. No. 1238, P. 1090; State v. Orr, 53 Idaho 452, 24 P.2d 679.)
See also the following as to sufficiency of corroboration: 98 Am.St.Rep. 166; Marler v. State, 68 Ala. 580-586; 98 Am.St.Rep. 167 b; Childers v. State, 52 Ga. 106. Bert H. Miller, Attorney General; J. R. Smead, Assistant Attorney General; and Ben B. Johnson, Prosecuting Attorney for Franklin County, for respondent.
A witness' status as an accomplice must be proven as a fact. If there is any substantial conflict of evidence on the point it must be left to the jury to determine. (State v. Grant, 26 Idaho 189; People v. Coffey, (Cal.) 119 P. 101; Bird v. U.S. , 187 U.S. 118, 47 L.Ed. 100.)
The witness must have been an accomplice in the identical crime for which the defendant is on trial. (State v. Grant, supra; People v. Evans, (Cal.) 167 P. 190; Buttry v. State, (Okl.) 194 P. 286; Newman v. People, (Colo.) 135 P. 460; Leon v. State, (Ariz.) 189 P. 433.)
An accessory after the fact is not an accomplice. (State v. Grimmett, 33 Idaho 203; State v. Slothawer, (Mont.) 182 P. 270.)
If the testimony is essential as corroboration of confessed accomplices, the jury's verdict of guilty requires the assumption, on appeal, that they found the witness not an accomplice. In such case their verdict is final and there should be no reversal of the judgment based thereon. (State v. Grant, supra; People v. Bunkers, (Cal.) 84 P. 364, 370.)
- Appellant Earl Gilbert was convicted of burglary in Franklin County. The appeal is from the judgment of conviction and from an order denying motion for new trial.
Three errors are assigned as the basis of the appeal.
It is contended the evidence is insufficient to justify the verdict, which claim is apparently based on the premise that defendant's participation in the crime was shown by the testimony of two accomplices, and that the only evidence to corroborate this testimony came from one McVey, a witness for the state, and who, as appears from his evidence, took an active part with appellant in selling the cured meats, the subject of the larceny, and who also processed in his residence in Salt Lake City and kept for his own use a dressed hog, which likewise constituted a part of the stolen property.
[1.2] According to McVey, appellant came to his residence alone in the early morning following the robbery with the stolen loot, gave him a slab of bacon, left the dressed pig, and later assisted the witness and others in the processing thereof. It is evident the witness knew at that time that the meat was stolen.
Under our statutes (see sec. 19-2017, I.C.A.):
"A conviction can not 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, it if merely shows the commission of the offense, or the circumstances thereof."
However, it does not appear McVey had any connection with the larceny prior thereto, or at any other time, or that he planned, or aided in the planning thereof, or had any knowledge thereof whatever until after the meat had been stolen.
"An accomplice is a person concerned in the commission of a crime, whether he directly participates in the commission of the act constituting the offense or aids and abets in its commission, or, not being present, has advised or encouraged its commission." (State v. Grimmett, 33 Ida. 203, 193 P. 380.)
From the evidence adduced, it is clear McVey, while an accessory after the fact, was not an accomplice. He did not become connected with the...
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