Moses v. State , 58 Ala. 117 ( 1877 )

BBICKELL,' C. J.

The record does not disclose that the City Court, before organizing and charging the grand jury, ascertained whether any of its members had, during the preceding twelve months, served as grand or petit jurors, as required by the statute. — Pamph. Acts, 1874-5, p. 186. This was a duty the statute imposes, but if the intendment, from the recitals of the record, be, as is urged by appellant’s counsel, that the' duty was not performed, the findings of the grand jury, as organized, are not thereby affected. The statute expressly declares, that if a grand jury is drawn in the presence of the officers designated by law, no objection to its formation, nor to the legal qualifications of any of its members, shall be entertained after its organization. — B. C. § 4187,

It is a settled rule at common law, that an accomplice is a competent witness for the State, and that a conviction may be had upon his testimony. The degree of credit to which he is entitled, lies exclusively in the province of the jury, though, in prosecutions for felony, the judges, in their discretion, will advise against a conviction on his uncorroborated evidence. — 1 Green. Ev. §§ 379-80. The Code of 1852 provided that, “a conviction cannot be had on 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 show the commission of the offense or the circumstances thereof.” This provision was construed as extending alike to misdemeanors and felonies. — Davidson v. State, 33 Ala. 350; English v. State, 35 Ala. 428; Bird v. State, 36 Ala. 279; Smith v. State, 37 Ala. 472; Bass v. State, ib. 469, This construction led to a change of the statute, limiting it in operation to felouies.-R. C. § 4193. The result of this legislation is, that in felonies a conviction can not be had on the testimony of an accomplice, without corroboration connecting the defendant with the commission of the offense. In misdemeanors, a conviction may be had on his evidence, without corroboration, if the jury credit him. His complicity goes only to his credibility, and of that the jury must judge, as they judge the credibility of other witnesses. The instructions given to the jury, seem to us, to state the law correctly. The instruction requested would have invaded the province of the jury. It was for them to determine, from all the facts of the case, how far the witness' complicity in the offense, affected his credit. From the character of the offense, not involving moral turpitude, merely malum probitum, and from the nature of his connection with it, the jury may not have supposed there was any good reason to discredit him. The law does not pronounce that without regard to these facts, his complicity affects his credit very matericilltj.

Let the judgment be affirmed.