State v. Smith

• Citation: 164 P. 519,30 Idaho 337
• Parties: STATE, Respondent, v. CLYDE SMITH, Appellant
• Decision Date: 24 April 1917
• Court: United States State Supreme Court of Idaho

164 P. 519

30 Idaho 337

STATE, Respondent, v. CLYDE SMITH, Appellant

Supreme Court of Idaho

April 24, 1917

GRAND LARCENY-ACCOMPLICE-CORROBORATION-SUFFICIENCY OF-SEPARATE TRIAL-INSTRUCTIONS-SUFFICIENCY OF-CHALLENGE INDIVIDUAL JUROR-EVIDENCE.

1. A conviction cannot be sustained on the uncorroborated testimony of an accomplice; but it is not necessary that the testimony of the accomplice be corroborated in every detail,-all that is required is, that there be corroborating evidence upon some material fact or circumstance, which, in itself, and without the aid of the testimony of the accomplice, tends to connect the accused with the commission of the offense.

2. The law clearly contemplates that some weight should be given to the testimony of an accomplice, and when the requirements of the law as to corroboration have been met, such testimony may become of the utmost importance in securing a just enforcement of the law.

3. Under section 7860, Rev. Codes, as amended by ch. 112, Sess Laws 1911, p. 368, the granting or refusal of a separate trial rests in the sound discretion of the trial court.

4. Where counsel for accused, at the time of the giving of an instruction, states that it is satisfactory, he cannot on appeal from an adverse decision complain of the conduct of the trial court.

5. Where accused is represented by counsel during the trial, and exercises the right to challenge jurors, the neglect of the trial court to inform him that if he intends to challenge an individual juror he must do so before the jury is sworn, will not be regarded as prejudicial error.

6. The evidence in this case examined and held sufficient to sustain a conviction.

7. Instruction No. 11 examined and found not to be prejudicial to the appellant.

[As to convicting on the testimony of an accomplice, see notes in 71 Am.Dec. 671; 34 Am.Rep. 408; 98 Am.St. 158]

APPEAL from the District Court of the Seventh Judicial District, for Adams County. Hon. Ed. L. Bryan, Judge.

Appellant was convicted of the crime of grand larceny, and appealed from the judgment and order overruling a motion for a new trial. Affirmed.

Judgment affirmed. Petition for rehearing denied.

Frank Harris, P. E. Cavaney and Freehafer & Stinson, for Appellant.

The identity of the cattle in the case at bar must be established. (Newton v. State (Tex. Cr.), 48 S.W 507; Hilligas v. State, 55 Neb. 586, 75 N.W. 1110; Shelby v. State (Tex. Cr.), 42 S.W. 306.)

Where evidence establishes similarity merely and there is no other evidence of identification, conviction cannot be supported. (Bishop v. People, 194 Ill. 365, 62 N.E. 785; Bishop v. State (Tex. Cr.), 25 S.W. 25; Beach v State (Tex. App.), 11 S.W. 832.)

Possession by the defendant of the same number of cattle as was stolen is not sufficient to justify conviction. (Harris v. State, 13 Tex. App. 309; Smith v. State, 44 Tex. Cr. 81, 68 S.W. 510; Horn v. State, 30 Tex. App. 541, 17 S.W. 1094.)

Testimony of accomplice must be corroborated by other testimony which in itself and standing alone tends to connect defendant with the commission of the offense. (People v. Koening, 99 Cal. 574, 34 P. 238; People v. Ames, 39 Cal. 403; People v. Thompson, 50 Cal. 480; Coleman v. State, 44 Tex. 109, 111; State v. Grant, 26 Idaho 189, 140 P. 959; State v. Rooke, 10 Idaho 388, 79 P. 82; Middleton v. State, 52 Ga. 527.)

An accomplice must be corroborated as to the corpus delicti. (Smith v. State, 10 Wyo. 157, 67 P. 977; State v. Williams, 46 Ore. 287, 80 P. 655; State v. Koplan, 167 Mo. 298, 66 S.W. 967; State v. Stevenson, 26 Mont. 332, 67 P. 1001; Bines v. State, 118 Ga. 320, 45 S.E. 376, 68 L. R. A. 33.)

Evidence obtained from the testimony of an accomplice is now universally looked upon as coming from a polluted source and received only from necessity and policy. (United States v. Lancaster, 2 McLean, 431, 26 F. Cas. No. 15,556; United States v. Henry, 4 Wash. (C. C.) 428, Fed. Cas. No. 15,351; United States v. Smith, 2 Bond, 323, 27 Fed. Cas. No. 16,322; 1 Enc. Ev. 98, and cases cited.)

Legal corroboration, when applied to an accomplice, consists of independent evidence tending to support his testimony. (People v. Elliott, 44 Hun, 623, 5 N.Y. Crim. Rep. 204, 8 N.Y.S. 223; 1 Enc. Ev. 103; Johnson v. State, 4 G. Greene (Iowa), 65; State v. Williamson, 42 Conn. 261; Powers v. Commonwealth, 110 Ky. 386, 61 S.W. 735, 63 S.W. 976, 53 L. R. A. 245.)

Refusing to grant separate trials was clearly an abuse of the court's discretion. (Davis v. People, 22 Colo. 1, 43 P. 122; Commonwealth v. James, 99 Mass. 438.)

The giving of instruction No. 11 tended to confuse the jury. This instruction was criticised in State v. Wright, 12 Idaho 212, 85 P. 493, and in State v. Janks, 26 Idaho 567, 144 P. 779. This instruction also assumed a statement of facts to have been proved, which were not. (State v. Walters, 7 Wash. 246, 34 P. 938, 1098; State v. Eubank, 33 Wash. 293, 74 P. 378.)

T. A. Walters, Atty. Gen., J. Ward Arney and A. C. Hindman, Assts., and L. L. Burtenshaw, Pros. Atty., for Respondent.

The granting or refusing of new trials lies in the sound discretion of the trial court. (State v. Driskell, 12 Idaho 245, 247, 85 P. 499.)

The record discloses that the testimony of the accomplice in this case was corroborated by other testimony which, standing alone, connected the defendant with the commission of the crime. (State v. Knudtson, 11 Idaho 524, 83 P. 226.)

Instruction No. 11 is a correct statement of the law, and was approved in State v. Wright, 12 Idaho 212, 85 P. 493.

BUDGE, C. J. Morgan and Rice, JJ., concur.

OPINION

BUDGE, C. J.

The appellant and one Logan were charged jointly, on information by the prosecuting attorney of Adams county, with the crime of grand larceny. The charging part of the information is as follows:

"That on or about the 15th day of May, 1914, and at Adams County, State of Idaho, the said defendants, Clyde Smith and Lloyd Logan, being then and there, did, there and then, wilfully, unlawfully and feloniously steal, take, carry, lead and drive away from the possession of one Ben Woodden ten head of fat beef cattle branded with a "W" on the right hip, the same then and there being the personal property of the said Ben Woodden, with the intent then and there to convert the said cattle to their own use."

The defendants pleaded "not guilty" and the cause was tried before the court with a jury. The jury returned a verdict acquitting Logan and finding the appellant guilty as charged in the information. The appellant was sentenced to serve a term of imprisonment in the state penitentiary of not less than one nor more than fourteen years. Thereafter a statement and motion for a new trial were presented and overruled, to which action of the trial court appellant duly excepted.

This is an appeal from the judgment and from the order overruling appellant's motion for a new trial. Appellant assigns and relies upon forty-five separate assignments of error. It will be unnecessary in this opinion to discuss in detail or separately all of the assignments of error.

The assignment of error principally relied upon by counsel is directed against the sufficiency of the evidence introduced upon the trial to corroborate the testimony of the witness Miller, an accomplice. From an examination of the instructions touching the necessity for corroboration in order to warrant a conviction, and the extent to which corroboration is necessary, it appears that the law is fully and sufficiently elucidated therein. It is not necessary that the testimony of an accomplice be corroborated in every detail-all that is required is that there be corroborating evidence upon some material fact or circumstance which in itself, and without the aid of the testimony of the accomplice, tends to connect the accused with the commission of the offense. (State v. Knudtson, 11 Idaho 524, 83 P. 226; State v. Bond, 12 Idaho 424, 86 P. 43; State v. Grant, 26 Idaho 189, 140 P. 959.)

In this case the evidence, independent of any testimony given by the accomplice Miller, conclusively shows: That the cattle in question were the property of and in the possession of Ben Woodden, the owner, on the 15th day of May, 1914, near his residence; that during Woodden's absence for an hour or two on said day, the cattle disappeared; that there were horses' tracks found immediately behind the cattle and following them; that on the same day appellant was seen in possession of the cattle by one Stiles, near his residence, a distance of two or three miles from Woodden's home; that on the night of the 15th of May, 1914, the appellant and Miller stayed at Stiles' place, and permitted the cattle to range within a short distance of his home; that in a conversation with Stiles the appellant told him, among other things, that he was riding after cattle for a couple of men in Boise and that Miller, the accomplice, who was with him at the time, was a new man at the business and had only been on a couple of days; that on the following morning the appellant and Miller rode south in the direction that the cattle were left the night previous; that one Wing, a sheepman, was nearby and he and the witness Stiles walked in the direction of the cattle together; that Wing's dog turned the cattle, and just about that time the appellant came up to Stiles and Wing and cursed them and accused them of dogging the cattle; and that upon the evening prior they came from the direction of the bridge across Little Fork, up above Woodden's ranch, or north of Stiles' home, and on the morning of the 16th they drove the cattle south of Woodden's and Stiles' homes, being in the opposite direction from the Woodden ranch; that on the 24th day of May the cattle were found near Logan's ranch, some...