State v. Knudtson

• Decision Date: 02 December 1905
• Citation: 11 Idaho 524,83 P. 226
• Parties: STATE v. KNUDTSON
• Court: Idaho Supreme Court

83 P. 226

11 Idaho 524

STATE v. KNUDTSON

Supreme Court of Idaho

December 2, 1905

CRIMINAL LAW-COMPETENCY OF CODEFENDANT AS WITNESS FOR STATE-CORROBORATION OF ACCOMPLICE-SUFFICIENCY OF CORROBORATION.

1. One who has been jointly indicted with a defendant on trial, and has entered a plea of guilty, is a competent witness for the state on the trial of his codefendant.

2. An instruction as to the evidence necessary to corroborate the testimony of an accomplice which states the law on that question to the jury in as favorable light to the defendant as it is given in section 7871 of the Revised Statutes, is sufficient and not open to objection by the defendant.

3. Under the provision of section 7871 of the Revised Statutes the corroboration of the evidence of an accomplice must be on some material fact or circumstance, and such that when standing alone and independent of the evidence of the accomplice tends to connect the defendant with the commission of the offense.

(Syllabus by the court.)

APPEAL from the District Court in and for Latah County. Honorable Edgar C. Steele, Judge.

Defendant John Knudtson was charged by information jointly with one Fred Hanning with the crime of arson. From a judgment of conviction and an order denying his motion for a new trial defendant appealed. Affirmed.

Affirmed.

Stewart S. Denning, for Appellant.

One who has been jointly indicted with a defendant and has entered a plea of guilty is not a competent witness for the state on the trial of his codefendant. (Rev. Stats., secs. 7860-7862; 2 Hawk. P. C., c. 46, sec. 18; 1 Hale's P. C., p. 305; 3 Russell on Crimes, p. 596; 1 Greenleaf on Evidence, sec. 663; Bishop's New Criminal Procedure, secs. 1018-1026; McGinness v. State, 4 Wyo. 115, 31 P. 978; Benson v. United States, 146 U.S. 325, 36 L.Ed. 991 13 S.Ct. 60.) There must be corroborative evidence of the "advising and encouraging," and we were entitled to an instruction from the court fully covering all those grounds. (1 Greenleaf on Evidence, sec. 381; State v. Geddes, 22 Mont. 68, 55 P. 919; State v. Welch, 22 Mont. 92, 55 P. 927; Roscoe's Criminal Evidence, 122; Wharton on Criminal Evidence, 442; People v. Compton, 123 Cal. 403, 56 P. 44; People v. Irwin, 77 Cal. 494, 20 P. 56; Barkley v. Copeland, 86 Cal. 483, 25 P. 1.) What we complained of was that on the twentieth day of December, and long after the fire, the county attorney insisted in going into a "fishing excursion," the same as though he had been examining the defendant in supplemental proceedings, as to where he kept his money. All of this, we think, was error, as the matter was not material in the decision of the case, and was only done for the purpose of prejudicing the defendant before the jury. (People v. McGungil, 41 Cal. 431; People v. Rozelle, 78 Cal. 84, 20 P. 36; People v. Dennis, 39 Cal. 634; People v. Russell, 46 Cal. 121; People v. Reinhart, 39 Cal. 449; People v. Johnson, 57 Cal. 571; People v. Beck, 58 Cal. 212; People v. O'Brien, 66 Cal. 602, 6 P. 695.)

J. J. Guheen, Attorney General, Edwin Snow and F. S. Wettach, for the State.

One of the several persons jointly indicated, who has been convicted or who has pleaded guilty, is a competent witness for the prosecution. (12 Cyc. 451; State v. Magone, 32 Or. 206, 51 P. 452.) The instruction as to corroboration of accomplice's testimony is in almost the exact language of the statute. (Rev. Stats., sec. 7871.) It will be noted, too, that defendant's exception rather goes to what the court did not give or omitted to give, rather than to any error in the instruction itself. If counsel desired further instructions, he should have offered them and taken his exception to the court's rejection of them. Otherwise he cannot be heard to complain here. (People v. Biles, 2 Idaho 114, 6 P. 120.)

AILSHIE, J. Stockslager, C. J., concurs. Sullivan, J., sat at the hearing, but took no part in the decision.

OPINION

The facts are stated in the opinion.

AILSHIE, J.

The defendant and one Fred Hanning were charged jointly on information by the prosecuting attorney with the crime of arson. Previous to the trial Hanning pleaded guilty, and at the trial of the defendant Knudtson the state called Hanning as a witness against this defendant. Defendant objected to Hanning testifying against him on the ground that Hanning had not been discharged from the information. Counsel for defendant placed his chief reliance upon the provisions of sections 7860, 7861 and 7862 of the Revised Statutes which sections provide as follows:

"Sec. 7860. When two or more defendants are jointly indicted for a felony, any defendant requiring it must be tried separately. In other cases the defendants jointly indicted may be tried separately or jointly in the discretion of the court.

"Sec. 7861. When two or more persons are included in the same indictment, the court may, at any time before the defendants have gone into their defense, on the application of the district attorney, direct any defendant to be discharged from the indictment, that he may be a witness for the people.

"Sec. 7862. When two or more persons are included in the same indictment, and the court is of opinion that in regard to a particular defendant there is not sufficient evidence to put him on his defense, it must order him to be discharged from the indictment before the evidence is closed, that he may be a witness for his codefendants."

It may often happen that either the state or one of several defendants jointly indicted will want to place one of the defendants on the witness-stand, and the foregoing sections were evidently enacted for the purpose of enabling the court in its discretion to compel such a witness to testify. But in view of the requirements of section 8143, where it is enacted that "A defendant in a criminal action or proceeding to which he is a party is not, without his consent, a competent witness for or against himself," and the court would have no right to compel one of two or more defendants jointly indicted to testify either for the state or the defendant without first discharging him from the indictment or information. As soon, however, as one of the defendants has entered the plea of guilty, the requirements of the provisions of these statutes as to such defendant are fully met, and the reason no longer exists for either the court to discharge him from the indictment, or for his refusing to testify. We have discovered no legal reason why a defendant who has entered the plea of guilty cannot thereafter, upon the trial of a codefendant, be required to testify either for the state or the defendant as the case may be; and neither the state nor the defendant on trial has any legal grounds for objection to a codefendant testifying under such circumstances. The supreme court of California, in People v. Labra, 5 Cal. 183, under statutes very similar to our own, held that when a codefendant elects to be tried separately, he becomes a competent witness for the other codefendant. The doctrine of People v. Labra was approved and followed in People v. Newberry, 20 Cal. 439. In State v. Magone, 32 Ore. 206, 51 P 452, several defendants were jointly indicted, and one of the defendants entered the plea of guilty. Thereafter, upon the trial of his codefendant, Magone, the state offered the defendant who had pleaded guilty as a witness against Magone, and the defendant objected and excepted. The supreme court of Oregon held that the witness was competent, and that his evidence was properly admitted against his codefendant. In McGinnis v. State, 4 Wyo. 115, 31 P. 978, the supreme court of Wyoming held that...