State v. Hicks
| Decision Date | 12 September 1894 |
| Citation | 60 N.W. 66,6 S.D. 325 |
| Parties | STATE OF SOUTH DAKOTA, Defendant in error, v. ROBERT HICKS and Jay Hicks, Plaintiffs in error. |
| Court | South Dakota Supreme Court |
Affirmed
Wm. H. Parker, Rice & Polley and M. McMahon
Attorneys for plaintiffs in error.
Coe I. Crawford, Attorney General,
Thomas Harvey, Asst. Attorney General, Pierre, S.D.
Attorneys for defendant in error.
Opinion filed Sept. 12, 1894
On the 23rd day of May, 1894, in the circuit court for Meade county, plaintiffs in error were convicted of the crime of murder in killing one John Myers on the 14th day of January, 1894. For a reversal of the judgment, plaintiffs in error assign generally errors in the admission and exclusion of evidence, the insufficiency of the evidence to corroborate that of William C. Walker, an accomplice, and the refusal of the trial court to give certain instructions asked for.
The first assignment is too general to be available, and is not helped out by the brief or argument of counsel, as no particular ruling of the court is therein referred to, or claimed to be erroneous. We conclude that plaintiffs in error rely only upon the second and third grounds, as their brief and argument are confined to them.
One William C. Walker was jointly indicted with these plaintiffs in error for the crime of which they were convicted. The latter were tried together, and separately from Walker. Upon their trial, Walker was a witness for the state, and testified fully to the fact and circumstances of the killing. Plaintiffs in error contend that without the testimony of Walker there was nothing upon which to base a conviction, and that his testimony, he being an accomplice, was not so corroborated as to justify a conviction upon it. The rule as to the necessity and extent of the corroboration in such cases, which in many—perhaps most—of the states rests entirely upon the practice and policy of the courts, is statutory here, and is as follows:
“A conviction cannot be had upon the testimony of an accomplice unless he be corroborated by such other evidence as 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.”
Comp. Laws, § 7384. The corroborative evidence contemplated by this section is not necessarily such evidence as will of itself support a conviction, and thus render that of the accomplice cumulative or superfluous, but it is evidence that tends to support that of the accomplice in the respect that “It tends to connect the defendant with the commission of the offense;” in other words, the corroborative evidence must be such as fairly leads to the inference that the testimony of the accomplice implicating the defendant in the commission of the offense is true. Some substantial evidence of this sort is essential, but its extent or degree of probative force is for the jury. It is not necessary, as argued by plaintiffs in error, that the corroborative evidence of itself should be sufficient to prove the commission of the crime, or establish the defendant’s guilt. To require that would be to render the evidence of the accomplice unnecessary and redundant. To corroborate means to strengthen; in this case, to make stronger the probative criminating force of the accomplice’s testimony. His testimony alone is not self-supporting. It must be corroroborated. Its credibility must be strengthened. The requirement of the statute is not that such corroborating testimony shall prove or establish the defendant’s connection with the commission of the crime, but that it shall so “tend.” The law is complied with if there is some other evidence fairly tending to connect the defendant with the commission of the crime, so that his conviction will not rest entirely upon the evidence of the accomplice. This is the rule in states having statutes like ours. People v. Everhardt, 104 NY 591, 11 N.E. 62; People v. Elliott, 106 NY 288, 12 N.E. 692; People v. Mc Lean, 84 Cal. 480, 24 Pac. 320; People v. Cloonan, 50 Cal. 449; Ross v. State, 74 Ala. 532; State v. Thornton, 26 Iowa, 79; Smith v. Corn. (Ky.) 17 SW 182. This is also the rule, in substance, in states having no statute, but in which the practice of the courts has become so settled as to impose a duty upon the trial court to instruct the jury that they should not convict upon the uncorroborated testimony of an accomplice. 1 Greenl. Ev. § 381, and note; Rosc. Cr. Ev. p. 120; Com. v. Holmes, 127 Mass. 424.
Turning now to the evidence in the case, let us see if the testimony of Walker, the acomplice, was substantially corroborated as to material facts fairly tending to connect plaintiffs in error with the commission of this crime. Walker testified: That he had been acquainted with Robert Hicks about three years, and that he first met Jay Hicks about the middle of the previous October (which would be about three months prior to the alleged murder). That about the last of October or the first of November, while he and Jay and Robert Hicks were “going down the Belle Fourche river together, Jay Hicks asked him if he knew any place where they could go and make a raise.” That he asked him what kind of a raise he meant. That Jay then asked him if he “knew any one that had money, to hold him up, and get it.” That Jay said there was an old bachelor lived over on the Elk creek breaks who had sold his cattle, and was afraid to put his money in the bank, and “he thought it would be a good place to go and make a raise if he only had a gun.” That after that he frequently came to witness’ house, and often asked him “if he had run onto a gun yet.” That Sunday afternoon, December 10th, he told witness that he had been up to Cottle’s, and that he had a “44 Colt’s six shooter,” that he tried to buy it, but Cottle would not let him have it because he had only seven dollars to pay down on it. That afterwards witness and Robert Hicks went to Cottle’s store and witness bought of Cottle a 44-caliber pistol and the next day gave it to Jay Hicks, and after dinner all three—Robert, Jay, and witness—started on horseback for Myers’ place. Reaching there they found “the old man” in the corral, feeding cattle. It was then “just getting dark.” All went into the house for the purpose, as talked, of getting some supper. After eating, and while the deceased was in the act of clearing away the dishes, Jay Hicks spoke to him, and made “a whistling kind of sound.” The old man turned- around, and, seeing the gun pointed at him, said, “Oh, my God, what does this mean?” At that instant Jay Hicks fired, the old man fell to the floor, and the light, which was a kerosene lamp, went out. That witness then tried to get out of the door, but Jay, as witness testifies, “ran the gun against my belly (it was all dark), and pulled the gun off,” setting witness’ clothing on fire, the bullett passing through his clothes. Witness and Robert having gone out of the door, Jay came out, and called them back. On returning, they found the old man “scrambling as though he had about come to himself, and was trying to get up off the floor.” Witness lit the lamp, and Robert took the old man’s pocket book from his pocket. It contained a $20 bill, a $10 bill, and a $5 bill, and a note,—“a piece of paper with some writing on it,” —which he threw on the floor. Jay held the gun to the old man’s head, and told him if he didn’t tell where his money was he would blow his brains out. The old man insisted that he had just bought a mowing machine, and had loaned Jim Bard $300, and that he didn’t have any more. “Just at that, he shot him, and the old man kind of dropped his head.” They then got coals out of the stove, piled wood on it, and sprinkled kerosene over it all, and left. That, finding it difficult to make their way back in the dark, they went into the timber, built a fire, and stayed until morning, when they returned on horseback to Martha Hicks’ house, where Jay and Robert lived, sent their horses to the stable, and after breakfast witness took his horse and went home. He further testified that afterwards, and just before their arrest, Jay told witness that there was talk of their being arrested for the murder of Myers, and “wanted to fix up an excuse about playing cards” at witness’ home on the night of the murder, “He said we would all tell them, when arrested, that we had a game of cards Thursday night at my place, and that my wife seen us playing, and that Robert Walker player with us, so as to have them for witnesses, and that I was to claim to have started into the game with the gun, and lose nine dollars and the gun, and that he had the chips and was winner, and gave me a five-dollar bill and took the gun.” Afterwards Jay came down to witness’ house, and brought Bob (Robert Walker) with him, “and we went through the same story in the presence of Bob, so that Bob Hicks would know just what to swear to if we were arrested.” Mrs. Maggie Walker, witness’...
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