State v. Gillum

• Citation: 228 P. 334,39 Idaho 457
• Parties: STATE, Respondent, v. MACK GILLUM, Appellant
• Decision Date: 24 July 1924
• Court: United States State Supreme Court of Idaho

228 P. 334

39 Idaho 457

STATE, Respondent, v. MACK GILLUM, Appellant

Supreme Court of Idaho

July 24, 1924

CRIMINAL LAW-CONSPIRACY TO SELL INTOXICATING LIQUOR-ACCOMPLICE-CORROBORATION-SUFFICIENCY OF EVIDENCE.

1. Under C. S., sec. 8957, 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 charged.

2. C S., sec. 8957, is a legislative prohibition against a conviction on the uncorroborated testimony of an accomplice and under this statute one accomplice cannot corroborate another so as to obviate the requirement that there must be corroboration by other than accomplice testimony.

3. The testimony of an accomplice is not merely cumulative where it is properly corroborated, and it is not necessary that there be corroborative evidence concerning every material fact about which the accomplice testified, nor is it necessary that the whole case be proved outside the testimony of the accomplice.

4. The statute permits a conviction upon the testimony of an accomplice, with the limitation that the accomplice be corroborated by such other evidence as tends to connect the defendant with the commission of the crime, but the corroborative evidence must be independent of the testimony of the accomplice and connect or tend to connect the defendant with the crime.

5. Held, that the evidence in this case, in itself and without the aid of the testimony of the accomplices, tends to connect the defendant with the commission of the offense charged, and with the testimony of the accomplices is sufficient to support the verdict, under the limitations of C. S., sec 8957.

APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Raymond L. Givens, Judge

Judgment of conviction for conspiracy to sell intoxicating liquor. Affirmed.

Affirmed.

E. P. Barnes and Frawley & Koelsch, for Appellant.

A conviction cannot be had on the testimony of an accomplice, unless he be 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. (C. S., sec. 8957; State v. Grimmett, 33 Idaho 203, at 210, 193 P. 380; State v. Whisler, 32 Idaho 520, at 523, 185 P. 845; Babb v. State (Okl.), 217 P. 1054.)

The corroboration must be upon some material fact or circumstance, and that standing alone and independent of the evidence of the accomplice it must tend to connect the defendant with the commission of the offense. (State v. Knudtson, 11 Idaho 524, at 528, 83 P. 226.)

An accomplice must be corroborated with respect to the commission of a crime as distinct from the connection of the defendant therewith. (Ingram v. State, 78 Tex. Cr. 559, 182 S.W. 290; Hall v. State, 52 Tex. Cr. 250, 106 S.W. 379.)

The testimony of one accomplice cannot be accepted as sufficient corroboration of the testimony of another accomplice. (16 C. J., p. 710, par 1453, and cases cited in note 5.)

No general rule can be stated but 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 requirements with respect to corroboration. (16 C. J., p. 712, par. 1458, and cases cited in notes 28 and 29.)

Evidence which merely raises a suspicion that defendant is guilty is not sufficiently corroborative of the testimony of an accomplice to warrant a conviction nor will uncertain or equivocal corroboration suffice. (People v. Woodcock, 52 Cal.App. 412, 199 P. 565; McCalla v. State, 66 Ga. 346.)

A. H. Conner, Attorney General, and James L. Boone, Assistant, for Respondent.

The evidence corroborating an accomplice must, in order to warrant a conviction, connect or tend to connect the defendant with the crime with which he is charged. (State v. Bond, 12 Idaho 424, 86 P. 43; 16 C. J., sec. 1434, note 25, p. 701; State v. Turnbow, 99 Ore. 270, 193 P. 485, 195 P. 569; State v. Brake, 99 Ore. 310, 195 P. 583.)

Sufficient corroboration of the testimony of an accomplice to warrant a conviction may be furnished by the suspicious conduct of the defendant. (16 C. J., sec. 1441, notes 53 and 57, pp. 706, 707; People v. McLean, 45 Cal. 480, 24 P. 32; People v. Solomon, 125 Cal. xix, 58 P. 55; People v. Ardell, 135 Cal. xix, 66 P. 970; State v. Turnbow, supra.)

The strength or credibility of corroborating evidence is for the jury and is sufficient if it tends to connect the defendant with the commission of the crime, even though standing alone it would be entitled to but little weight. (State v. Smith, 30 Idaho 337, 164 P. 519; People v. McLean, supra; State v. Brake, supra; 16 C. J., sec. 1457, p. 711.)

WILLIAM A. LEE, J. Budge and Dunn, JJ., concur. WM. E. LEE, Dissenting.

OPINION

WILLIAM A. LEE, J.

--Appellant was jointly informed against with Roy Williams and Charles W. Morris for conspiracy to sell intoxicating liquor. Williams and Morris pleaded guilty to the charge and on a plea of not guilty appellant was tried and convicted by a jury, and from the judgment of conviction thereon this appeal is taken. The only assignment of error made by appellant is that the evidence is insufficient to sustain the verdict of guilty. This assignment specifies the particulars in which the evidence is claimed to be insufficient, all of which specifications are based upon the ground that Williams and Morris, being accomplices, the evidence of these accomplices is insufficiently corroborated under C. S., sec. 8957, which provides:

"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."

Under the common-law rule testimony of an accomplice, although not corroborated, may be sufficient to sustain a conviction. The foregoing statute, which is found in many other states, is a legislative prohibition against a conviction upon the uncorroborated testimony of an accomplice, although the jury might believe such testimony. Under this statute one accomplice cannot corroborate another so as to obviate the requirement that there must be corroboration by other evidence which in itself and without the aid of the testimony of the accomplice, or accomplices, tends to connect the defendant with the commission of the offense. There can be no conviction upon the testimony of accomplices alone, no matter how many there may be, if their testimony is not corroborated by evidence apart from accomplice testimony. (16 C. J., p. 710, sec. 1453, and authorities cited; 1 R. C. L., p. 170, sec. 17; Powers v. Commonwealth, 110 Ky. 386, 61 S.W. 735, 63 S.W. 976, 53 L. R. A. 245; Blakely v. State, 24 Tex. Ct. App. 616, 5 Am. St. 912, 7 S.W. 233.)

It would unduly extend this opinion to attempt a detailed statement of the state's evidence in this case, appellant not having offered any evidence. The alleged crime was committed on June 21, 1921. It appears that the codefendant Morris had been a deputy sheriff of Ada county since January preceding and that his duties consisted principally of acting as bailiff in the district court, he being occasionally called on by the sheriff to do other work. On the day in question Morris was approached by appellant at the sheriff's office and asked if he would accompany him to a place where he thought there was some liquor, appellant agreeing to get more definite information, and later called Morris on the telephone and stated that he had located the liquor and asked Morris to meet him, which Morris did, and the two, in a car used in connection with the sheriff's office, went to the Smead Dairy ranch in south Boise, where they found one Fred Newman standing in the kitchen door of the house. Morris stated to Newman that he was from the sheriff's office and wanted to search the place, and leaving Newman in charge of appellant proceeded to search the premises, and under the floor found a ten-gallon keg of moonshine liquor and also a wash-boiler with bottles filled with the same kind of liquor. Newman, who seemed to be in charge of the premises, got away, and Morris loaded the liquor and containers into the car, after which he and appellant agreed that they would cache the liquor in the sagebrush on a near-by hill, which was accordingly done. Morris then told appellant he had a meeting to attend in Boise and the two separated, having agreed to meet later in the evening.

Around 11 o'clock P. M., by appointment, Morris and appellant drove to where they had earlier in the evening cached the liquor and placed the same in the car which Morris was driving. Morris testified that on this second trip appellant said that the defendant Williams would meet them and take charge of and sell the liquor. About midnight Williams drove up in a car and told them of a good place to cache the liquor and the three defendants then went to a point about two miles south on the Boise bench where the liquor was buried in the sage-brush underground.

On the following day appellant again went to the sheriff's office and calling Sheriff Agnew to one side the conversation had between the sheriff and appellant, as related by Agnew is substantially to the effect that appellant said, "If I get you a man that will put you straight on this matter will you go through with it?" and Agnew...