State v. Kellar

• Decision Date: 25 October 1899
• Citation: 80 N.W. 476,8 N.D. 563
• Parties: STATE v. KELLAR.
• Court: North Dakota Supreme Court

8 N.D. 563

80 N.W. 476

STATE

v.KELLAR.

Supreme Court of North Dakota.

Oct. 25, 1899.

Syllabus by the Court.

1. In this state no conviction for any crime can be had upon the uncorroborated testimony of an accomplice. There must be other testimony tending to connect the defendant with the commission of the offense.

2. The female participant in incestuous intercourse, whose action is voluntary, and uninfluenced by any element of coercion, either by force, fraud, fear, or undue influence, is an accomplice in the crime of incest.

3. Whether or not the female participant in incestuous intercourse is an accomplice in the crime of incest is generally a question of fact for the jury, and this is always the case where her coercion is sought to be shown inferentially.

Appeal from district court, Morton county; W. H. Winchester, Judge.

Chris Kellar was convicted of incest, and appeals. Reversed.H. G. Voss, for appellant. James G. Campbell, State's Atty.

BARTHOLOMEW, C. J.

There is but one question in this case that need be considered. The defendant has been convicted of the crime of incest, the female being his daughter. It is not claimed by the state, and could not be upon the record, that there is any evidence tending to connect the defendant with the commission of the crime except the evidence of the daughter. Our statute (section 8195, Rev. Codes) reads: “A conviction cannot be had upon the testimony of an accomplice unless he is 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.” The defendant asked the following instruction: “Under the laws of this state no conviction can be had in a criminal case upon the uncorroborated testimony of an accomplice. It is for you to determine from the testimony in this case whether or not the witness Lizzie Kellar was an accomplice in the commission of this crime. If you find as a fact that sexual intercourse was had between the defendant and the said Lizzie Kellar, and you find that she voluntarily submitted to such intercourse, without being forced, then she, in law, is an accomplice to the commission of said offense, and no conviction in this case can be had unless her testimony is corroborated by some other credible testimony in this case; and the corroboration is not sufficient if it merely shows the commission of the offense, or the circumstances thereof, but such corroborative testimony must tend to connect the defendant with the commission of the crime.” This instruction was refused, nor did the court, in its charge to the jury, in any manner refer to this subject. This was error, which compels us to reverse this judgment. Whart. Cr. Ev. § 440, defines an accomplice as “a person who knowingly, voluntarily, and with a common intent with the principal offender unites in the commission of a crime.” While this definition has been often quoted, and is strictly accurate in the great majority of cases, it is not, we think, universally accurate. Two persons may be equally guilty in the commission of a crime, may both be present, and equally participate in its commission. As between them, there can be no “principal offender,” yet each is the accomplice of the other. We prefer Black's definition: “An associate in crime; one who cooperates, aids, or assists in committing it.” That the female participant in incestuous intercourse, whose action in the matter is voluntary, and uninfluenced by any element of coercion, either by force, fear, fraud, or undue influence, is an accomplice in the commission of the crime of incest, is, we think, firmly settled in the law. State v. Jarvis, 18 Or. 360, 23...