State v. Reilly

• Court: North Dakota Supreme Court
• Writing for the Court: BRUCE
• Citation: State v. Reilly, 22 N.D. 353, 133 N.W. 914 (N.D. 1911)
• Decision Date: 16 December 1911
• Parties: STATE v. REILLY.

22 N.D. 353

133 N.W. 914

STATE

v.REILLY.

Supreme Court of North Dakota.

Dec. 16, 1911.

Syllabus by the Court.

Under Section 10,004 of the Revised Codes of 1905, which provides that “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,” it is not necessary that the corroborative evidence shall cover every material point testified to by the accomplice, or be sufficient in itself to warrant a verdict of guilty. If the accomplice is by such testimony corroborated as to some material fact or facts tending to connect the defendant with the commission of the offense, the jury may from that infer that he speaks the truth as to all.

Appeal from District Court, Cavalier County; Kneeshaw, Judge.

James J. Reilly was convicted of maintaining a liquor nuisance, and appeals. Affirmed.Geo. M. Price, for appellant. Andrew Miller, Atty. Gen., Alfred Zugier, Asst. Atty. Gen., and G. Grimson, State's Atty., for the State.

BRUCE, J.

Appellant was convicted of the crime of keeping and maintaining a common nuisance, namely, a place where intoxicating liquors were sold and delivered to be drunk as a beverage, between December 15, 1908, and May 26, 1909, in the village of Osnabrook, Cavalier county. Prior to the trial one James Wilkinson pleaded guilty to the charge of maintaining the same nuisance, and he was allowed to testify for the state in this case. His testimony, as given on cross-examination by defendant's counsel, was in part as follows: “I, myself, was arrested and pleaded guilty to the charge of maintaining a common nuisance on the premises described in the complaint in this case. I understood, when I pleaded guilty to that charge, that I was charged with running this place. I have been talking about myself, and now come in here and say that Dr. Reilly was a proprietor of that place of business. He got all the proceeds while I was there, and put me in charge. He never told me that he was running the place himself, or that he owned this stock there. The reason I say Dr. Reilly was a proprietor was because I said I turned over to proceeds to him, and that it was him I was working for.” This witness, Wilkinson, was the principal witness for the state. His evidence in chief disclosed that he was in the actual charge and control of the premises, and made the sales, and counsel for appellant contends that no witness except Wilkinson testified to any control of the premises by the defendant Reilly, or any sales made by the defendant Reilly; nor is there anywhere in the record, outside of Wilkinson's testimony, any direct evidence to show that Reilly knew of Wilkinson's unlawful sales. There is no doubt that, as defendant contends, Wilkinson cannot be looked upon other than as an accomplice in the commission of the crime. State v. Kellar, 8 N. D. 563, 80 N. W. 476, 73 Am. St. Rep. 776, and it is also, no doubt, true, as contended upon this appeal, that no conviction of any crime can be had upon the uncorroborated testimony of an accomplice; that there must be other testimony tending to connect the defendant with the commission of the offense. State v. Kellar, supra. If, therefore, there is no corroborative testimony in the legal sense of the word, the judgment should be reversed. State v. Coudotte, 7 N. D. 109, 72 N. W. 913.

It is contended by the defendant: That the only facts in the record tending...