State v. Maney , 54 Conn. 178 ( 1886 )

Carpenter, J.

The prisoner was charged with arson. The principal witness against him was Matthew Frawley, who testified that he burned the barn, having been hired to .do so by the prisoner; that he spent the greater part of the day at his house; that in the evening he took him into his cellar, proposed to him that he burn the barn and furnished him with some whisky and with a bottle partly filled with kerosene oil; that he- took the oil from a barrel nearly empty, so that he had to tip the barrel and then could not fill the bottle ; that he fired the building without using the oil, and subsequently threw it away, describing the place. He also described the cellar minutely, and, as it appears by the testimony of other witnesses, correctly. The bottle was found by an officer in the place pointed out by the witness, and was as described by him. It was produced in court and identified by him.

The production of the bottle in court and its identification by the witness, with the testimony as to the finding of it, and as to its condition, were objected to, but admitted. The first question in the case is, whether they were properly admitted.

The rule is that an accomplice ought to be corroborated as to some fact tending to connect the prisoner with the offense. The question now raised, in one aspect of it at least, is, whether it is error to allow the attorney for the state to corroborate his evidence as to a fact which is in issue, but which does not inculpate the prisoner.

The credibility of an accomplice in respect to all his testimony is for the jury. They may require corroboration in respect to that part of it in which he states his own connection with the crime. Manifestly, if the defense had questioned that, the evidence objected to would have been admissible for that purpose. But the credibility of such a witness is for the jury as to all that he says. Hence any fact or circumstance which tends to corroborate in a slight degree any part of his testimony, is admissible. It was so held in State v. Wolcott, 21 Conn., 272. In that ease the accomplice detailed two conversations which he had with the prisoners, or one of them, in which they related to him conversations which they had had with third parties. The third parties were admitted to testify that they in fact had such conversations, although there was nothing in either conversation in itself which tended to criminate the prisoners. The court, by Chuech, C. J., say they “ showed a privity and connection, and a conspiracy between Dickerman and the prisoners,” and that Dickerman “was their confidant to whom they imparted their plans and their movements as he had testified.” Still, all the inculpating testimony came from the accomplice, so that the case is an authority for holding that he may be corroborated as to any material fact in issue, although that fact does not connect the prisoner with the offense. In that case, as in this, there was other corroborating evidence which did inculpate the prisoners. In that case it was not held, and we do not hold in this, that corroboration as to facts which do not inculpate the prisoner will be sufficient, but simply that evidence which corroborates as to any fact in issue is admissible for what it is worth. Bishop on Criminal Procedure, § 1170, says :—“Not inconsistently with these views it is permissible also to submit to the consideration of the jury evidence tending to show the accomplice’s probable credibility in his narration, though coming short of the required corroboration.”

But we cannot say that the evidence objected to in this case has no tendency to connect the prisoner with the crime. The witness was corroborated as to the cellar, its condition and things in it; particularly as to the bottles and the barrel of kerosene oil. The fact that the bottle of oil was found in the place he pointed ont shows that he had it as he said he had; and that fact, in connection with the fact that there was on that day an empty barrel from which a small quantity of oil could be taken by tipping it, and that there were also in the cellar empty bottles of similar size and shape, renders it probable that he got the oil at the time and place named. The fact being established that he had the bottle of oil and that he got it in the prisoner’s cellar, the inquiry is a pertinent one, of whom did he receive it ? and for what purpose ? In answer to these questions the accomplice says he received it of the prisoner, and for the purpose of firing this barn. And here he is corroborated by the prisoner’s declarations made to the detectives. The testimony of the detectives however goes further than that, and, if believed by the jury, fastens the crime upon the prisoner.

The question is not therefore whether this evidence is admissible as supplying the corroboration which the evidence of an accomplice needs at a point which connects the prisoner with the crime, for the corroborating evidence of that character had already been furnished ; but whether the testimony of an accomplice may be corroborated in other and minor points, which do not, taken by themselves, touch the prisoner. And this is a question, not arising under the law peculiar to accomplices, but under the general rules of evidence with reference to witnesses who from any cause stand before the jury with their credibility seriously impaired. Thus, suppose doubt were thrown upon the whole story of the accomplice, and it was claimed by the defense that he did not set the barn on fire, would it not on general principles be admissible to prove, by a person who saw him do it, that his story was true ? And yet this would not connect the prisoner with the crime.

The remaining question arises upon the charge of the-court to the jury. The learned counsel for the prisoner complain that the charge of the court puts the testimony of an accomplice “ on a par with other kinds, and says merely, if you are convinced beyond a reasonable doubt, by the testimony of an accomplice, of the defendant’s guilt, that is sufficient; stating exactly the same rule that applies to all kinds of evidence, and containing no caution, no advice, and showing no distinction between testimony of an accomplice and other testimony.” If that is a right view of the charge there is doubtless foundation for the complaint. But we do not so interpret the charge.

The court first told the jury that “ Frawley was the active agent in this crime, and his story comes to you under such circumstances as to call for the most careful scrutiny. In the argument a good deal of stress has been laid upon what is claimed to be a rule of law,—that the story of an accomplice ought to be received with great care; and that undoubtedly is the rule. Our Supreme Court quite a number of years ago laid down this rule in language better than I can give it myself, and in order that you may have it exactly I will read it to you.”

The court then proceeded to read the charge of the Superior Court to the jury in the case of State v. Wolcott, 21 Conn., 272, and from the opinion of the Supreme Court sustaining that charge. Of course the jury must have understood that the court adopted the portions read from that case as a part of his instruction to them.

In that charge, consequently in this, we find these words :—“ An accomplice is an admissible witness, but as he comes before the court under suspicious circumstances his testimony ought to be received with great caution. As a general rule it will be unsafe to convict upon the testimony of an accomplice alone, uncorroborated by other testimony. It ought to be corroborated in material facts connecting the prisoners and each of them with the crime; but the degree of credit to be given to the testimony of an accomplice, and the amount of corroboration necessary to render it satisfactory, are matters to be considered and determined by the jury.” That charge was sustained by this court in the former case and we must regard it as correct in this.

Immediately after reading from the report of that case the court said:—“ Row if I should attempt to make a rule out of this language of the Supreme Court it would be something like this—that the jury may hear the testimony of an accomplice, and that upon the naked testimony of an accomplice they have the right to find a verdict of guilty, but that they ought never to do so unless they find such evidence to be so clear, strong and convincing that it removes from their minds every reasonable doubt of the guilt of the accused.”

This is the portion of the charge which is complained of. If this was the whole charge, or if we were required to consider the rule thus formulated apart from what precedes and what follows it, there would be difficulty in sustaining it. But we cannot presume that the judge intended to withdraw from the jury the caution he had already given them. They must have understood that the scales in which the evidence of an accomplice is to be weighed are different from those in which other evidence is weighed. It is true the testimony of an accomplice may be so strong and convincing as to justify a verdict of guilty without corroboration; and that was what the jury were told. They were also instructed to exercise caution in weighing his testimony. That negatives the claim that Ms testimony was placed upon the same footing as that of other witnesses. We think therefore that the fair import of the whole charge is, that if the jury after making due allowance for the suspicious circumstances under which the testimony is given, are fully convinced of the prisoner’s guilt, they may return a verdict of guilty.

Again. The case was not submitted to the jury upon the naked testimony of the accomplice, for the court had previously told the jury that his testimony should be received with caution, and that it ought to be corroborated in material facts connecting the prisoner with the crime ; and immediately after laying down the rule just alluded to, the judge said to the jury,—“ Now, taking that to be the rule, the state say there is no occasion for its application in this case, because they say that Erawley is corroborated.” He then called attention to the corroborating evidence, which we can see was amply sufficient to justify the jury in finding that the witness was corroborated as to material facts. Now we must presume that the jurors did their duty, that they considered the case as it was presented to them, that they required the accomplice to be corroborated, and that they considered the corroborating evidence and regarded it as sufficient. To suppose otherwise and assume that they founded their verdict upon the naked uncorroborated testimony of the accomplice, imputes to them a culpable neglect of duty and a manifest violation of their oaths.

We find no error in the judgment.

In this opinion the other judges concurred.