Chappell v. State , 6 Okla. Crim. 398 ( 1911 )

FURMAN, P. J.

(after stating the facts as above). First. Upon the trial of this cause, the judge instructed the jury as follows:

“A conviction cannot be had on the testimony of an accomplice, unless he be corroborated by such other evidence as tends to connect the defendant with the commission of the offense., The corroboration is not sufficient if it merely shows the commission of the offense, and the circumstances thereof. That is to say, if you believe that the witness Mrs. A. C. Inge was an accomplice, then you cannot convict the defendant upon her testimony alone, unless you find it corroborated in some material point which tends to connect the defendant with the commission of the offense.”

The defendant excepted to this instruction when given, upon the ground that the court should either have instructed the jury, positively that Mrs. A. C. Inge was an accomplice, and therefore defendant could not be convicted upon her testimony, unless it was corroborated by other evidence which tended to connect the defendant with the commission of the offense, or that, if the court submitted to the jury the question as to whether or not Mrs. Inge was an accomplice, then the court should have gone further, and instructed the jury as to what in law would con.stitute an accomplice. Defendant’s special instructions numbered 3 and 6 attempted to secure instructions from the court upon these two points.

The special instruction No. 6 is as follows:

“You are instructed that the witness Mrs. A. C. Inge is what is termed in law an accomplice, and that you cannot convict the defendant upon the testimony of the witness Mrs. Inge, unless the same is corroborated by other evidence which tends to connect the defendant with the commission of the alleged burning, and convinces your minds, beyond a reasonable doubt, of the guilt of the defendant; and I further charge you that the testimony of other witnesses, proving the burning of the store building in the manner and at the time as described by the witness Mrs. Inge, is not such corroboration as will warrant a verdict of guilty.”

The special'instruction No. 6 is as follows:

“You are instructed that you cannot convict the defendant upon the testimony of an accomplice — that is, a party connected in the commission of the crime — notwithstanding you -believe all of it, and believe from it that he is guilty.”

The court did not err in refusing to give requested instruction No. 3, because it went too far, and was liable to create the impression upon the minds of the jurors that they could not convict upon the testimony of Mrs. Inge, unless it was connected by other evidence, which convinced the jury, beyond a reasonable doubt, of the guilt of the' defendant. This is not the law. It is only necessary to authorize a jury t'o convict upon the testimony of an accomplice that such testimony is corroborated by other evidence, which tends to connect the defendant with the commission of the offense. The court did not err in refusing to give the sixth instruction requested by the defendant, because it would practically have destroyed the testimony of the accomplice, although it might have been corroborated by other evidence tending to connect the appellant with the commission of the offense. While these two instructions, as requested, are erroneous, and were properly refused by the trial court, yet each of them attempted to state a correct principle of law. The court should have modified the requested instructions, and have omitted the incorrect portions thereof, and have given the portions which, were correct. Under the evidence in this case the court would have been entirely justified in instructing the jury that Mrs. Inge was an accomplice, but, as the court did not do so, and submitted that question to the jury, the court should have gone further, and instructed the jury what it took to constitute an accomplice.

Second. In his motion for a new trial, appellant set up the fact that, subsequent to the rendition of the verdict in this case, Mrs. A. C. Inge, the witness on whose testimony he had been convicted, had voluntarily and of her own free will and accord made a sworn statement that she had testified falsely at the trial of said cause, and that the defendant was entirely innocent of the offense charged against him, and of which he had been convicted. He attached to this motion the following affidavit of said witness Mrs. Inge:

“Henryetta, Okla., March 5, 1910. I make the following statement of my own accord for my conscience has not let me rest one moment since I testified against M. D. Chapel of Ada, Okla. I now raise my hand towards high heaven and solemnly swear that he is innocent of the crime as he is of the murder of President Garfield. Pie did not know that his store would be burned when he left home. Rich Sanders and myself entered into a conspiracy to rob the store and then burn it, so on Sat. night his girl Bonnie Sanders stayed all night with me. Sunday night Mr. Sanders said he would keep her at home, she might tell something, so Mr. Sanders and I went to work Sunday night to take the goods out of the store; we put them in the bushes west of the store but after Mr. Chapel and I went to Ada Mr. Sanders and I got uneasy, and Mr. Sanders put them in the little cabin where the sheriff found them. I gave Mr. Sanders a key to the house before I left to go to Ada as that was the agreement to put them in the house where Chapel dived, if we got uneasy for we knew that would shift the suspicion from us to Chapel because he had insured on the goods. Mr. Sanders said after the arrest was made that he would run away. I came to Chapel’s store to work against his will, he never did want me to stay around him when he was in the mercantile business, but I went for I knew his disposition was such that he would not say a word and because he never did mistreat me in any way, he did not like me, and he did not want me to stay with him at all, he never did want me around him but I took advantage of his kindness and easy disposition and stayed with him anyhow. I received through the mail fifty dollars in bills the only things that was in the letter was this give old Chapel the devil when you get on the witness stand its the only way out don’t make any difference whether he is guilty or not, it keeps you out of the pen so take fifty and it will save us six hundred and fifty. Peat Duncan told me he aid not intend to let the company pay Chapel’s policy for he had worked a trick on him and got the policy in his possession he also said that he offered to see that he got the money all right if he would bring the books up to his office that he would have fixed it so they would pay it, but Chapel got offended because I made the proposition so I hope he will go to the pen. I make this statement of my own accord voluntarily and without fear or influence of any person, but that an innocent man might not be wrongfully punished for a crime he did not commit. Mrs. A. C. Inge.

“Subscribed and sworn to before me this 17th day of May, 1910. Hallie Whitaker, Notary Public. [Seal.]”

This affidavit is not in any manner assailed by the state. The contention of the Attorney General in his argument was that under the facts and circumstances in this case the jury would have been impelled by duty to return a.verdict of guilty against appellant, although the evidence of Mrs. Inge had been excluded; and, further, that it would be a dangerous rule to hold that where a witness had testified for the state that he could be permitted subsequently to file an affidavit that his or her testimony, given on the trial in chief, was false, and that such' a rule would place'a premium upon perjury and be an incentive for wholesale bribery of witnesses. Cases might arise in which the argument of the Attorney General might have great force; but in the case at bar a number of reputable witnesses testified on the trial that appellant had always borne the reputation of being an honest and law-abiding citizen. This evidence was not in any manner questioned by any testimony of the state, except the testimony of Mrs. Inge, and testimony as to some facts which, with the ’testimony of Mrs. Inge excluded, Would not be conclusive as to the guilt of the appellant. Under these circumstances, we think that it would be a perversion of justice to allow a citizen, of previous irreproachable character, to be sent to the penitentiary upon the testimony of a self-confessed perjurer. It should never be forgotten that the supreme purpose of the law is to secure the enforcement of justice. We think that the proper way to protect the state against perjury in such cases is to prosecute the party who commits it. In fact, if there were more prosecutions for perjury instituted in the courts of the state of Oklahoma, it would be much better for the administration of justice. A witness has no more right to commit perjury in the prosecution of a case than in the defense of a case. A false statement, sworn to for the prosecution, is just as much perjury, and should be just as vigorously prosecuted, as though it was sworn for the defense. In view of the evidence in this case, and the self-confessed perjury of the main witness of the átate, we think that a new trial should be granted upon both óí the grounds herein discussed.

The judgment of the lower court is therefore reversed, and . the cause is remanded for a new trial.

ARMSTRONG and- DOYLE, JJ., concur.