State v. Beene , 1977 S.D. LEXIS 177 ( 1977 )

DUNN, Chief Justice

(dissenting).

I would affirm the judgment of conviction. While the trial judge should have given the cautionary instruction, his failure to do so was not reversible error where the instructions as a whole fully and fairly stated the law on accomplices.

The trial court did refuse to give requested Instruction No. 1 which read:

“The testimony of an informer who provides evidence against a Defendant for pay, or for immunity from punishment, or for personal advantage or vindication, must be examined and weighed by the jury with greater care than the testimony of an ordinary witness. The jury must determine whether the informer’s testimony has been effected by interest, or by prejudice against the Defendant.”

The trial court did give South Dakota Criminal Pattern Jury Instruction 1-16-6 which reads:

“Nó. 10

“The State has offered the testimony of a witness who says he was an accomplice of the defendant in the commission of the offense charged. Under the law of this State a conviction cannot be had 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 offense, and the corroboration is not sufficient if it merely shows the commission of the offense, or the circumstances thereof. Therefore, the defendant cannot be convicted upon the testimony of the accomplice, unless you find in the testimony from some source other than said accomplice, evidence which tends to connect the defendant with the commission of the offense. The corroboration or testimony other than that of the accomplice, is not sufficient if it merely shows the commission of the offense charged or the circumstances thereof. The corroborating testimony is sufficient if it fairly tends to connect the defendant with the commission of the offense charged. But, it is not required that this corroborating testimony should be sufficient in itself to establish all of the elements of the offense with which the defendant is charged.”

The trial court also gave the following cautionary instruction which reads in part:

“No. 13

“ * * * In determining the weight to be given to the testimony of the witnesses, you are authorized to consider their relationship to the parties, when the same is proved, their interest, if any, in the event of the action, their feeling or bias, if any has been shown, their demeanor on the stand, their means of information, and the reasonableness of the story told by them, and to give weight accordingly.”

In regard to the federal cases cited by the defendant, I would agree with their holding that a failure to give an instruction on the care and caution a jury should use in considering the uncorroborated testimony of an accomplice would be plain error; however, the federal courts permit conviction of a defendant upon the uncorroborated testimony of an accomplice. South Dakota does not permit such a conviction, and thus the holdings of the federal courts would not be helpful in the present case. I now turn to the South Dakota case of State v. Douglas, 1944, 70 S.D. 203, 16 N.W.2d 489, cited by defendant. With regard to this issue, the court stated:

“He is a competent witness under our statute, but SDC 34.3636 changes the common law rule which permitted conviction on the uncorroborated testimony of such accomplice, by prohibiting such conviction. This statute crystalized in a rule of positive law what was already a rule of practice which courts regarded themselves as bound to observe, for it has long been the practice both in England and America for the Court not only to caution the jury as to the danger of acting upon the unsupported testimony of an accomplice, and to advise them not to convict unless there is some corroborating evidence.

“While the decisions under the statute are not free from confusion and it is said that the law has been thought not free from doubt and embarrassment as to the absolute duty of the trial Court to so instruct and as to whether failure to do so is reversible error, People v. Clough, 73 Cal. 348, 15 P. 5; Commonwealth v. Savory, 64 Mass. 535, 10 Cush. 535, we think that the weight of authority in states whose statute is like ours is that at least where such instruction is requested it is reversible error to refuse it in any case where the testimony of the accomplice is necessary to establish facts essential to defendant’s guilt. (Citations omitted)

“In many of these cases the logic and reason for the rule is not stated. The reason is of course that SDC 34.3636 states a positive rule of law which is part of the law of the case. * * *

“In the light of all this the Court should have given the requested instruction as to the duty of the jury to examine his testimony with great care and caution before accepting it as true. The refusal of defendant’s requested instruction as to the law of accomplices and the failure of the trial Court to in any manner instruct on the necessity of corroboration is reversible error.” 70 S.D. at 225-227, 16 N.W.2d at 499-500.

I would agree completely with Judge Bake-well’s conclusion in the above case. The court should have given the instruction as to the duty of the jury to examine the accomplice’s testimony with great care and caution, and, where the trial court also failed to give the instruction on accomplices which requires the necessity of corroboration, it would be reversible error. Here, however, the trial court did give the full jury instruction on the necessity of corroboration, which, among other things, states “the defendant cannot be convicted upon the testimony of the accomplice, unless you find in the testimony from some source other than said accomplice, evidence which tends to connect the defendant with the commission of the offense.”

I am not inclined, as the majority would indicate, to permit a concession by the Attorney General to foreclose this court’s proper interpretation of a case that has been submitted to the court as authority. The Douglas case submitted by the defendant is good, respectable authority for affirming this judgment, and I would follow it.

In addition to this, the court gave the general cautionary instruction that the jury should consider the interests of a witness in the outcome of the case and the reason for the witness’ testimony. This, together with the full disclosure in the record of Mr. Friesen’s deal with the authorities whereby he would be held immune from prosecution for all crimes committed since he was 18 years old, only on the condition that he testify fully and freely in this case and provide information in regard to other unsolved crimes, should certainly have placed this jury on guard as to Friesen’s testimony and the need to consider it with extreme caution. It is difficult to imagine how the use of the magic words “care and caution in considering his testimony” would have added anything to the jury’s full knowledge of the deal that had been made, the accomplice’s interest and reason for testifying, the fact that his testimony alone could not convict the defendant, and that the jurors must find corroboration from other witnesses to connect this defendant with the crime before finding him guilty. To reverse this case for failure to give the added cautionary instruction requested places an undue emphasis on the use of certain key words in an instruction when the instructions as a whole fully and fairly state the law as to an accomplice.

Further, the corroborating testimony of the owners of the burglarized buildings, of Jerry Jensen, Steve Ellis and Diane Wiker fairly connects this defendant with the crimes charged, and I would affirm the judgment.

I am authorized to state that Justice WOLLMAN joins in this dissent.