People v. Smith , 35 N.Y. Sup. Ct. 626 ( 1883 )

Daniels, J.

—The defendant was convicted of the offense of violating the excise laws by making a sale of beer in quantity less than five gallons without license to the complainant witness. The evidence was wholly given by him to establish the alleged violation of the statute, and it was insisted in the defendant’s behalf that she could not be convicted upon it, without further proof tending to connect her with the commission of the offense.

This objection was presented under section 399 of the Code of Criminal Procedure, which has in terms prohibited a conviction upon the testimony of an accomplice, unless he be corroborated by such other evidence as tends to connect the defendant with the commission of the crime. But this witness in no manner participated in the act declared by the statute to be an offense. That was made out by the .sale itself, without license, and the person making the sale is the only one declared by the law to be criminal. The purchaser has been subjected to no criminal accountability whatsoever, and by the mere purchase he could not be a participant in the performance of the act which the statute has declared to be an offense... That was.performed wholly and conclusively by the defendant,, for she, unaided by the purchaser,’ acted alone in making the sale. An accomplice is a person involved, either directly or indirectly, in the commission of the crime. To render him such, he must, in some manner, aid or assist, or participate in the criminal act, and by that connection he becomes equally involved in guilt with the other party by reason of the criminal transaction. This witness incurred no such relation to the offense committed, and therefore was not an accomplice within the meaning of this section of the Code. A point similar to this arose in Commonwealth v. Willard, 22 Pick. 476, and Commonwealth v. Downing, 4 Gray, 29, and it was held by the court pronouncing those decisions that such a purchaser was not an accomplice. A similar principle was also observed and applied in Campbell v. Commonwealth, 84 Penn. 187; State v. McKean, 36 Iowa, 348; President, &c. of St. Charles, v. O’Malley, 18 Ill. 407; Smith v. State, 37 Ala. N. S. 472; People v. Farrell, 30 Cal. 316.

It has been urged that the question whether this witness was an accomplice or - not should have been submitted to the jury, but that point was not raised upon the trial. And if it had been, the case of Commonweath v. Glover, 111 Mass. 395, differed so far in its controlling circumstances from the present case, as to render it inapplicable to the one now before the court upon the point.

The judgment from which the appeal has been taken should be affirmed.

Davis, P. J., and Beady, J., concur.