State v. Betsall , 11 W. Va. 703 ( 1877 )

JOHNSON, Judge,

delivered the opinion of the Court:

The first question we will consider is that raised in the third bill of exceptions: Did the court err in overruling the motion for a continuance? Upon the face of the affidavit, we think the defendantshowedhimself entitled to a continuance. He stated in his affidavit that he. had material witnesses, who resided in Marietta, Ohio; that their evidence would be material; that he had made efforts to get them; that without their evidence he could not safely go to trial; that he could not prove the same facts by any other witnesses, within his knowledge; that he had assurances that if he had until the next term of the court, he could procure their attendance. If this had been all the record disclosed in connection with said motion, upon reason and authority we would say that the court erred in overruling the motion for a continuance. But the record further shows, that upon the reading of said affidavit, the court interrogated the prisoner upon oath, at the bar of the court, as to the matters set forth in said affidavit; and that he stated that he had taken no steps to obtain the attendance of said witnesses residing in Marietta, Ohio; that said witnesses resided in said city, and that it was only twelve miles from the courthouse of Wood county; that he had a father and brother residing in Parkersburg, who were able to go for said witnesses, and secure their attendance, if it could be done; but that he had not asked them to go for him, or any one else, to see if the attendance of said witnesses could be procured; that he had not had subpoenas issued for said witnesses, nor had he any reason to suppose, that if the case was continued, said witnesses could be procured on the trial, except that his counsel had told him they could be procured. It is not necessary to consider whether the court should have certified what it did in said bill oí exceptions, as to the circumstance of the special grand jury being impaneled at the request of the prisoner, &c. The prisoner, by his own oath before the court, successfully contradicted almost every material allegation by him made in his affidavit; and, contrary thereto, showed thathehad made no sort of effort to secure the- attendance of the witnesses he desired, and had no reason, except what his counsel told him, that there was any probability that the attendance could have been secured, had the continuance been had.

In Hewitt’s Case, 17 Gratt. 629, Judge Moncure says: “A motion for a continuance is addressed to the sound discretion of the court, under all the circumstances of the case; and though an appellate court will supervise the action of an inferior court in such a motion, it will not reverse a judgment on that ground, unless such action was plainly erroneous.” See also, Harman v. Howe, 27 Gratt. 676; Russell v. Commonwealth, Court of Appeals of Va., 1 Va. Law Journal 434; Davis & Moore v. Walker, 7 W. Va. 447. In the case of Hewitt v. The Commonwealth, two days before the court commenced, the defendant made his affidavit as to the materiality, absence, &c., of witnesses, which, prima facie, showed that he ought to have had his case continued, and was absent when the ease was called for trial, and his counsel made the motion for a continuance based on said affidavit; the court overruled the motion, and the trial was had in his absence, it being an indictment for assault and battery ; the defendant, by his counsel, excepted to the ruling of the court; and in the bill of exceptions, the court gave as the reason for overruling the motion for a continuance: “Because the court was of opinion that the defendant was attempting to evade a trial, by absenting himself from court, so as to prevent a personal examination in open court on his motion for a continuance.” "When the proper affidavit has been made, as Judge Moncure in the case before cited says, “the party thus shows, prima facie, that he is not ready for trial, though he has used due diligence to be so; and in the absence ’ of anything to show the contrary, the court ought to give him credit for honesty of intention, and to continue the case, if there be reasonable ground to believe that the attendance of the witness at the next term of the court can be secured, especially if the case has not been before continued for the same cause. But circumstances may satisfy the court that the real purpose of the party, in moving for a continuance, is to delay or evade the trial, and not to prepare for it and in such a case, of course, the motion ought to be overruled.” Under all the circumstances of this case, wé cannot say that the ruling of the court, in continuing the case, was plainly erroneous.

The point presented in the first bill of exceptions is: Did the court err in refusing to give the following instructions ?

“If the jury believe from the evidence that the house, alleged to have been broken and entered by the prisoner, was, at the time of the alleged commission of the offense, in the joint occupancy and possession of William P. Maddox and J. H. Spence; and did not belong to the said William P. Maddox alone, as charged in the indictment; and that the said Spence had one-half of the said house by virtue of an agreement to pay one-half the rent for the same. And if they further believe that there was only one door or entrance to said house, and that the same was the common entrance of said Maddox and said Spence to said house, then they must find the prisoner not guilty of the house breaking charged.”

We think the law is properly propounded in the instruction, and if there is any evidence in the bill of exceptions set forth, that tends to disprove the material averment in the indictment, referred to in said instruction; to-wit: that the prisoner did “ feloniously break and enter a certain out-house, called a barn, and used and occupied as a warehouse, the property of one William P. Maddox,” &o., the instruction was improperly refused. If there is any evidence before the jury tending to prove a case supposed in an instruction asked for, and the instruction propounds the law correctly, it should be given. Hopkins, Brother & Co. v. Richardson, 9 Gratt. 485. In such a case, it is best and safest to give the instruction : Early v. Garland, lessee, 13 Gratt. 1. If it would be proper in a civil case to give the instruction under such circumstances, for ■ stronger reasons it would in a criminal case.

Does the evidence tend to prove that tlie property in the barn at the time of the alleged house breaking, was not in W. P. Maddox, but in W. P. Maddox and J. H. Spence ? The evidence is that “ the prosecution proved that the barn, referred to in the indictment as having been broken open and entered, was on the 12th day of March 1877 in the joint use and occupation of W. P. Maddox and J. H. Spence. The said Maddox testifying (no one testifying to the contrary), that he rented the barn from one Woodruff, to whom he paid the rent for the same himself; and that he rented his meat shop to Spence, and hired to him the privilege of keeping his horse and feed in said stable, for which he paid him; that said Spence had a key to the door as well as himself, there being two keys to the lock; that said Spence was there at his pleasure, and that he could take the privilege from him at any moment; that the stable or barn was entirely under his control, and in the actual possession of him (said Maddox). And there was only one'outer door or entrance to the said barn.”

“ If the rule,” remarks Mr. East, “ by which to ascertain the ownership, may bo compressed with sufficient discrimation into a small compass, I should say generally, that where the legal title to the whole mansion remains in the same possession, there if he inhabit it, either by himself, his family or servants, or even by his guests, the indictment must lay the offense to be committed against; his mansion. And so it is if he let out apartments to inmates who have a separate interest therein, if they have tbe same outer door, or entrance into the mansion in common with himself. But it distinct families be in the exclusive occupation of the house and have their ordinary residence or domicile there, without any interference on the part of the proper owner, or if they be only in possession of parts of the house as inmates to the owner, and have a distinct and separate entrance, then the offense of breaking, &c., their separate apartments must be laid to be done against the mansion house of such occupiers respectively. Where it appeared that a servant lived in the house of his master at a yearly rent, it was ruled that the house could not be described as the master’s house, though it be on the premises where the master’s business is carried on, and although the servant has it because of his service2 Am. Or. Law §1577-8.

In this case there is no dispute that W. P. Maddox, as renter from Woodruff had the property in the bam at the time the offense was committed, unless the privilege granted to Spence disturbed that property, and made it the joint property of Maddox and Spence, instead of the separate property of Maddox alone. The evidence does not even tend to prove a joint ownership. The privilege granted to Spence, by Maddox, was not inconsistent with his ownership. A gentleman lives in a city, and near his mansion house he has a stable, and he hires to a man in the country, the privilege of putting his horse in the stable whenever he might come to the city, and the party thus holding the privilege carries a key to the stable, and some night the stable is broken open and the countryman’s horse is stolen, would it be proper for the indictment to describe the stable as the joint property of the owner and the countryman? It would be just as reasonable in that case as in the one at bar.

Spence, had but a privilege to put his horse and feed in the stable or barn; and that gave him no property therein ; and under the circumstances of the case, had the indictment described the barn as the property of Maddox and Spence, there would have been a fatal variance between the allegation and the proof, and the prisoner would have been entitled to his acquittal of the charge. We think the court properly refused the instruction.

The fourth bill of exceptions presents .the question : Whether the court erred in overruling the prisoner’s motion for a new trial, based on the ground of after-discovered evidence? In support of the motion, the prisoner’s own affidavit, and that of Rosa Wires and Rachel Davis’s were filed. The attorney for the State filed five counter-affidavits. Two of the affidavits for the State were to weaken or destroy the effect of Rachel Davis’s affidavit, which states that J. M. Baker, a policeman, had tried to induce her to stay away from court.

Several affidavits of the State were filed for the purpose of showing that the witness, Rosa Wires, relied on by the prisoner, in his motion for a new trial, was a woman of bad reputation, and was kept by the prisoner as his mistress.

If the prisoner’s affidavit did not itself, accompanied by that of his new witness, show that he was legally entitled to a new trial, it was properly refused.

In Read’s Case, 22 Gratt. 925, it is held: “To authorize the granting of a new trial, on the ground of after-discovered evidence, four things are necessary : First — The evidence must have been discovered since the former trial. Second — It must be such as reasonable diligence on the part of the party asking it could not have secured at the former trial. Third — It must be material in its object, and not merely cumulative or corroborative, or collateral. Fourth — It must be such as ought to produce, on another trial, an opposite result on the merits.” The affidavit of the prisoner states that he was surprised by the testimony of John Haley, a witness for the State? “who testified about a pretended conversation with affi-ant before the court house concerning the party Charles Woods, an alleged accomplice; and that said conversation took place on the 13th clay of March 1877. Affiant says that he had no such conversation with John Haley, on the-day of March 1877; that he was not able to leave his room on that day ;” but he now here even denies that he had that conversation at some other time and place. The time and place is not material, except so far as it might go to impeach the credit of the witness. The testimony is not of that character as would likely lead to a different result, if it was produced on a new trial. There is another fatal objection to it: if it was produced, its only effect could be to impeach the credit of the witness, Haley, before the jury; and the general rule is, that a new trial will not be granted where the object is to discredit a witness on the other side: Thompson’s Case, 8 Gratt. 637; Reade’s Case, 22 Gratt. 946; Gillilan v. Ludington, 6 W. Va. 145. That seems to be the sole object of this after-discovered evidence. If new trials were granted for such purposes, litigation would never cease. We do not think this is a proper case in which an exception should be made to the general rule. The court therefore did not err in overruling the motion for a new trial, based upon the ground of after-discovered evidence. Having decided that the affidavit of the prisoner was wholly insufficient to show he was entitled to a new trial, the question : whether the court erred in reading the ex parte affidavits, impeaching the character for chastity of the newly-discovered witness, in opposition to the prisoner’s motion for a new trial, does not fairly arise in the record, and cannot properly be considered in this case.

The second bill of exceptions raises the question : Did the court err in overruling the prisoner’s motion for a new trial, based on the ground that the verdict was contrary to the law and the evidence ?

This bill of exceptions sets out all the facts proven on the trial; and it is claimed by the prisoner’s counsel, that the verdict of the. jury is based on the uncorroborated testimony of Charles Woods, an alleged accomplice in the commission of the crime charged in the indictment, which is insufficient to sustain it. If the only material' testimony before the jury was the uncorroborated testimony, of the alleged accomplice, "Woods, is that sufficient, under the law, to justify the verdict? There seems to be no doubt expressed in any of the cases, that the evidence of an accomplice is competent. Hale informs us that at Newgate, 15 Charles 2, Henry Frew was indicted of burglary, and by advice of Keeling Chief Justice, Brown Justice, and Wilde Becorder, one Perrin, who was in jail for two robberies, and confessed himself to be in this burglary, was sworn as a witness against Frew. In 1662, Tonge, Phillips and others were indicted for treason, and upon conference with all the judges, it w.as intar alia resolved that a party to the treason, who confessed it, may be one of the witnesses in case of treason : for the statute intended two such witnesses, that were allowable witnesses at common ¿aw; and so & particeps criminis may be admitted as a witness; but the jury may, as in other eases, consider of the evidence and credit of the witnesses.

In 1672 Mary Price was convicted of treason, and Hyde of highway robbery, on the evidence of accomplices, 1 Hale’s P. C. 303. See also Hawkins, B. 2 chapter 46, §18, who says that, “ it has long been settled that it is no exception against a witness, that he hath confessed himself guilty of the same crime, if he has not been indicted for it; for if no accomplices were to be admitted as witnesses, it would be generally impossible to find evidence to convict the greatest offenders. Also it hath been often ruled that accomplices, who are indicted, are good witnesses for the King, until they be convicted.” In the case of Atwood and Robbins, indicted for robbery, 1 Leach. 464, Judge Buller referred to the twelve Judges the question: whether the evidence of an accomplice, unconfirmed by any other evidence that could materially affect the case, was sufficient to warrant a conviction. They were unanimously of opinion, that an accomplice alone is a competent witness. The same point ' was also resolved in Durhvm and Crowder’s case, charged with burglary, 1 Leach. 478. In Jones’s case, in 1809, Lord Ellenborough said, that within a few years a case was referred to the twelve Judges, where four men were convicted of a burglary, on the evidence of an accomplice, who received no confirmation concerning any of the facts which proved the criminality of one of the prisoners; but the Judges were unanimously of opinion that the conviction as to all the four was legal; and on that opinion they all suffered the sentence of the law, 1 Leach. 466, note («); 2 Camp. 132. See Byrd v. The Commonwealth, 2 Va. Cases, where these authorities are collected.

In Rex v. Addis, 6 C. & P. 388, Patterson, Judge, said: “ The corroboration of an accomplice ought to be as to some fact, or facts, the truth or falsehood of which, go to prove or disprove the offense charged against the prisoner.” In Rex v. Webb et al. 6 C. & P. 595, Williams, Judge said: “ Proving by other witnesses, that the robbery was committed in the way described by the accomplice, is not such confirmation of him as will entitle his evidence to credit so as to affect other persons. Indeed, I think, it is really no confirmation at all, as every one will give credit to a man who avows himself a principal felon, for at least knowing how the felony was committed. It has been always my opinion that confirmation of this kind is of no use whatever.” In Rex v. Hastings & Graves, 7 C. & P. 152, Lord Den-man, C. J., said: “I considered, and I believe my learned brothers agree with me, that it is altogether for the jury, and they may, if they please, act upon the evidence of the accomplice without any confirmation of his statement. But one would not, of course, be induced to give any great degree of credit to a person so situated.”

In Rex v. Wilkes & Edwards, 7 C. & P. 272, Alderson B., in charging the jury said : “ The confirmation of the accomplice as to the commission of the felony, is really no confirmation at all, because it would be a confirmation as much, if the accusation were against you and me, as it would be as to the prisoners who are now on trial. The confirmation, which I always advise juries to require, is the confirmation, of the accomplice in some fact, which goes to fix the guilt on the particular person who is charged. You may legally convict on the evidence of an accomplice only, if you can safely rely on the testimony ; but I advise juries never to act on the evidence of an accomplice, unless he is confirmed as to the particular person, who is charged with the offense.-”

In Regina v. Father, 8 C. & P. 106, Lord Abinger C. B. said in summing up : “I am strongly inclined to think that you will not consider the corroboration in this case sufficient; no one can hear the case without entertaining a suspicion of the prisoner’s guilt; but the rules, of law must be applied to all men alike. It is a practice that deserves all the reverence of law, that Judges have uniformly told juries, they ought not to pay any respect to the testimony of an accomplice, unless the accomplice is corroborated in some material circumstance. Now in my opinion, that corroboration ought to consist in some circumstance that affects the identity of the party accused. A man who has been guilty of a crime himself, will always be able to relate the facts of the case; and if the corroboration be only on the truth of that history without identifying the persons, that is really no corroboration at all.”

In Regina v. Stubbs, 33 Eng. L. & Eq. 551, decided in 1855, there had been a conviction of the defendant on the evidence of accomplices, at the quarter sessions of the county of Durham, under the direction of the chairman : “that it was not necessary that the accomplice should be confirmed as to each individual prisoner being connected with the crime charged, that their being corroborated as to material facts, tending to show that two of the other prisoners were connected with the larceny, was sufficient as to the whole case; but that the jury should look with more suspicion at the evidence in Stubbs’s case, where there was no corroboration, than to the cases of the others, where there was corroboration ; but that it was a question for the jury.” The jury found all the prisoners guilty. The question for the opinion of the court was: whether the direction of the chairman was right. Jervis, Chief Justice, said : “Ve cannot interfere, though we may regret the result that has been arrived at; for it is contrary to the ordinary practice. It is not a rule of law that accomplices must be confirmed, in order to render a conviction valid; and it is the duty of the judge to tell the jury, that they may act on the unconfirmed testimony of an accomplice; but it is usual in practice, for the judge to advise the jury not to convict on such testimony alone; and juries generally attend to the judge’s direction and require confirmation. But it is only a rule of practice.

There is another point to be noticed: Where an ac- ■ complice speaks to the guilt of three prisoners, and his testimony is confirmed as to two of them only, it is proper, I think, for the judge to advise the jury, that it is not safe to act on his testimony as to the third prisoner, in respect of whom he is jnot confirmed; for the accomplice may speak truly as to all the facts of the case, and at the same time in his evidence, substitute the third prisoner for himself, in his narrative of the transaction. In this case, the jury have acted on the evidence, and we cannot interfere.” Willes, Judge, said: “This is not a question of law, but of practice; and questions of law can only be reserved for our opinion.” The conviction was affirmed. It will be both interesting and profitable to sec how the courts -of last resort, in a number of our states, have viewed the question now under consideration. In Commonwealth v. Bosworth, 22 Pick., Morton, Judge, in delivering the opinion of the court, said : “It is competent for a jury to convict on the testimony of an accomplice alone. The principle, which allows the evidence to go to the jury, necessarily involves in it a power in them to believe it. The defendant has a right to have the jury decide upon the evidence which may be offered against him, and their duty will require of them to return a verdict of guilty or not guilty, according to the conviction which that evidence shall produce in their minds. But the source of this evidence is so corrupt, that it’ is always looked upon with suspicion and jealousy, and is deemed unsafe to rely upon without confirmation. Hence the court ever consider it their duty to advise a jury to acquit, where there is no evidence other than the uncorroborated testimony of an accomplice.”

The same position was taken in Commonwealth v. Price, 10 Gray 472.

In The State v. Walcott, 21 Conn. 272, Church, C. J. said: “ The testimony of an accomplice is admissible, and of course to some extent is presumed to be credible. The law would not admit proof which it had decided, a priori should not be believed when admitted. If credible at all, it may be sufficiently so to produce belief and conviction; and this is not unfrequently true in fact. The degree of credit, which is due to an accomplice, is a matter exclusively for the jury to say. Courts frequently do, and ought, to advise caution, in reposing confidence in the naked testimony of an accomplice; hut this is rather in the exercise of a proper judicial discretion, than because the law demands it.” State v. Stebbins, 29 Conn. 463. In The People v. Costello, 1 Denio. 83, the court held, that “ although it has often been said by Judges and elementary writers, that no person should be convicted oh the testimony of an accomplice, unless corroborated by other evidence, still there is no such inflexible rule of law. It is a question for the jury, who are to pass upon the credibility of an accomplice, as they must upon that of every other witness. His statements are to be received with great caution, and the courts should always so advisebut after all if his testimony carries conviction to the mind of the jury and they are fully convinced of its truth, they should give thé same effect to such testimony, as should be allowed to that of an unimpeached witness, who is in no respect implicated in the offense.” The People v. Davis, 21 Wend. 309.

In Upton v. The State of Iowa, Stockton, Judge, referring to the testimony of an accomplice said: “His testimony is that of an accomplice and must be corroborated by evidence tending to connect the defendant with the commission of the offense,” and held there was no such corroboration, and the judgment was reversed and a new trial granted. In the case of The State of Iowa v. Schlagel, 19 Iowa 169, Cole, Judge, said: “The rule is that if the jury are satisfied, that he (the accomplice) speaks the truth in some material part of his testimony, in which they see him confirmed by unimpeached evidence, this may be ground for their believing, that he also speaks truth as to other parts, as to which there may be no confirmation.” He then says: “Our statute (Rev. Stat. §4102) requires corroboration of an accomplice connecting the defendant with the commission of the offense; but in this case no question is made on that point.” It is presumed the same statute was in force, when the case of Upton v. Iowa, above cited, was decided. In Dawley v. The State, 4 Ind. 128, it was held, that a jury may convict upon the testimony alone of an accomplice.” In Stocking v. The State, 7 Ind. 326, it was held, “ that the evidence of an accomplice should be carefully scrutinized by the court and jury; yet the jury may convict upon such evidence, even though it be unsupported by any corroborating testimony.”

In the case of The State v. John Haney, 2 Dev. & Bat. 390, Gaston Judge, delivering the opinion of the court said : “ This court understands the rule of law to be, that unsupported testimony of an accomplice, if it produce undoubting belief of the prisoner’s guilt, is sufficient to warrant a verdict affirming his guilt; such is certainly the law of the country, from which we have derived the principles of our jurisprudence.”

In the case of The State v. John C. Hardin, 2 Dev. & Bat. 407, Ruffin, C. J. said : “The evidence of an accomplice is undoubtedly competent, and may be acted on by the jury as a warrant to convict, although entirely unsupported. It is however, dangerous to act exclusively on such evidence, and therefore the court may properly caution the jury, and point out the grounds for requiring evidence confirmatory of some substantial part of .it; but the court can do nothing more, and if the jury really yield faith to it, it is not only legal, but obligatory upon their consciences to found their verdict upon it.”

In State v. Watson, 31 Mo. 361, Napton Judge, in delivering the opinion"of the court said: “ There seems to be some inconsistency in the rules laid down by text-writers in relation to the testimony of accomplices. It is conceded with great uniformity, that a conviction based upon the uncorroborated testimony of an accomplice is legal; as he is a competent witness, it follows as a consequence that his testimony, if credited, will authorize a jury to convict, although unsupported by another witness. But it is the practice in England and probably in this country, where Judges are still entrusted ivith the duty of charging the jury on the facts as well as the law of the case, to advise juries to acquit when the prosecution rests on the sole and uncorroborated testimony of the accomplice.”

In the case of The United States v. Troax, 3 McLean 224, McLean, Judge, instructed the jury : “that an accomplice is a competent witness; and that the jury must judge of his credibility. Such a witness always comes before the court and jury under the most unfavorable circumstances. By his own admission he participated in the offense, which he charges, and is called to establish against the defendant. And this charge is made by him generally, if not always, under a hope that by making it, he may escape punishment. Such a motive is supposed to influence the witness so strongly, as to take from his statements the credit, which they might otherwise be entitled to. And in addition to this, the fact of having committed the same offense goes to impeach his credibility. From these consideration a conviction is rarely founded alone upon the testimony of an accomplice.”

In Allen v. The State, 10 Ohio St. 287, the supreme court of Ohio held : “The degree of credit, which ought to be given to the testimony of an accomplice, is a matter exclusively for the consideration of the jury. In most cases it is highly important that the jury should require his testimony to be corroborated by other evidence or circumstances, rather than to convict upon his unsupported testimony. Indeed, it can very rarely be expected that the testimony of an accomplice, admitting his own depravity and turpitude in the matter, would be sufficient to overcome all reasonable doubts and presumptions in favor of the accused. But it is said, there is no rule of law requiring of the jury a refusal to convict upon the uncorroborated testimony of an accomplice.”

All the authorities we have cited agree upon two prepositions as settled law:

1. That the testimony of an accomplice is competent.

2. That, after the court has cautioned the jury as to such testimony where it is uncorroborated,'and the jury . convicts upon it, such conviction is legal, It seems that in all, or nearly all the cases cited, according to the . law and practice governing the courts rendering the decisions, that the Judges were authorized in a criminal case, to charge the jury upon the facts as well as the law of the case. Such is not the law, or practice, either in • Virginia or in our own State. In Virginia and . in this State, the juries are judges of the law as well as the fact in a criminal case; and while the court may charge the jury as to the law of the .case, yet the court is not permitted to charge the jury as to the weight of the evidence in any case. Our courts are_ somewhat peculiar in this respect; but the law has been so held in Virginia from the earliest history of her jurisprudence; and we think it constitutes one of the brightest ornaments thereof. In a criminal case, the accused has the right to a trial by his peers, untrammeled, by any interference by the court as to the facts of his case. The jury are supposed to know him, they are his neighbors and acquaintances, and they are not apt to improperly convict him, on testimony not worthy of belief. While it might benefit him for the court, to instruct the jury, where a conviction was sought on the uncorroborated evidence of an accomplice, that it was not safe to convict on such testimony without confirmation; yet if the Judge could interfere in one case, he could in another; and it is much safer for the citizen, that the court is not permitted to make any comment on the weight of the evidence in any case. It is error for a court in the trial of a criminal case to make a remark to, or in the presence of the jury, in reference to matters of fact, which might in any degree influence them in their verdict: State v. Hurst, infra.

It might be that the uncorroborated testimony of the accomplice would be entirely convincing to ajury. ■ He might be young, seduced from the paths of rectitude by one much older, and might detail the simple truth of the whole case in such a manner as would carry conviction to the mind of every juror, so that he could not say he had any doubt of the guilt of the accused. While the court in our State, by long settled practice in criminal cases, is not permitted to instruct the jury on the weight or effect of the evidence, there is the largest latitude given to counsel, in reading the law to the jury, and commenting on the weight of the testimony ; and ajury is not apt to believe the uncorroborated testimony of an accomplice, under such circumstances, stained as he is by crime, according to his own admission, unless there is something in his manner of testifying, or other circumstances surrounding the transaction, which, while they might not under the law amount to confirmation, would convince the jury that the witness was telling the truth.

We have a "Virginia case, much like the one here, Brown’s Case, 2 Leigh 769. The question in, that case was presented in much the same manner as it is here. The statement of the case shows that: “The prisoner moved the court to set aside the verdict and order a new trial, on the ground that the evidence did not warrant the finding. This motion was overruled. But the judge made a statement of the facts as they appeared in evidence at the trial, and ordered it to be made part of the record; from which it appeared that the Commonwealth introduced a witness named Boss, whose evidence fully warranted the conviction, if he was to be believed; but on cross-examination of this witness it appeared, that he had been apprehended with the prisoner, and jointly charged with him, before the examining magistrate, with the felony of which the prisoner was now indicted ; but after some examination by the magistrate, he was discharged, and sworn as a witness against the prisoner; and on that examination he denied most, perhaps all, the material facts, to which he now testified. The witness was a young man between eighteen and twenty years of age ; and he gave as a reason for this variance in his testimony, that the prisoner had informed him, that if he was examined, he would not be bound to disclose any knowledge he possessed, as in doing so he would implicate himself.

It was also disclosed by the witness, in the course of his cross-examination, that he was to receive part of the profits of the counterfeit notes, which he (and he only) proved to have been given by the prisoner to the negro, Milus, to be passed to E. Perryman. The manner of the witness during his examination was frequently hesitating ; and in some instances, as to collateral facts implicating himself, he prevaricated ; but in his narrative of the main facts, which went to establish the prisoner’s guilt, he was unembarrassed and consistent. The other evidence, if Boss’s testimony was disregarded, was clearly insufficient to warrant the conviction of the prisoner; and the motion for the new trial was made on the ground that Boss was an incompetent witness, or if competent, unworthy of credit. The court passed sentence upon the prisoner according to the verdict.” In the appellate court: “it was insisted that the new trial ought to have been granted, since it appeared that the verdict of conviction was founded on the testimony of a witness, who was not only an accomplice, but by his own account, had committed perjury in an earlier stage of this very prosecution.” Judge Brockenbrough, in delivering the opinion of the court, said: “'The question presented to us is: whether a new trial ought to have been granted to the prisoner on account of the incompetency, or want of credibility, of the principal witness, whose evidence mainly produced the conviction. In Byrd’s Case, 2 Va. Cases 490, this court gave a very decided opinion on the competency of an accomplice as a witness, at any time before his conviction. The question of his credibility may surely be left to the determination of the jury, under the superintendence of the judge who tries the cause. The credit of this witness has been affirmed by the jury, and sanctioned by the judge, who heard and saw him. This court, sitting as an appellate court, and knowing-nothing of the evidence, or of the witness, except as it appears on the paper, feels itself very incompetent to decide on the credibility of the testimony; unless it was irresistibly clear that the conviction was wrong, this court would not disturb it. We are unanimously of opinion that no new trial should be granted in this case, on that ground.”

Where a jury has found the defendant guilty in a criminal case; and a motion is made to set aside the verdict, and grant a new trial, on the ground that the evidence is insufficient to sustain the verdict, the appellate court will not set aside the verdict and grant a new trial, unless it is irrisistibly clear that the conviction was wrong. The liberty of the citizen is sufficiently protected, when a jury finds the defendant guilty upon the 'evidence under the superintendence of the court, and the Judge, who presides at the trial, is satisfied with the verdict, and the record does not show that the verdict'was plainly unwarranted by the evidence. In the case under consideration it does not appear, that any improper evidence was admitted, or that proper evidence was excluded. The accomplice was sworn as a witness and gave his statement to the jury in hearing and under the superintendence of the court; the jury believed his statement, and found the prisoner guilty of the crime charged ; and the Judge, who sits for the protection of the citizens, as well as the interests of the State, was satisfied with the verdict, and refused to set it aside. By this he said he regarded the evidence sufficient to sustain the verdict; and we cannot say that it was not. If the jury believed it, by all the authorities it was sufficient to sustain their verdict; and they certainly did believe it. We have not thought it necessary to inquire, whether or not the evidence of the accomplice was corroborated in any material matters. We take the position that, without any corroboration whatever, the evidence of an accomplice is sufficient to convict, if it convince the jury beyond a reasonable doubt of the guilt of the accused. It is suspicious evidence, it is true, and comes from a bad source, but if it is so detailed to a jury, as to convince them of the guilt of the prisoner, and they find him guilty, and the court is satisfied with the verdict, the Appellate Court will not, because it was not corroborated, set the verdict aside and grant a new trial.

For the foregoing reasons I am of opinion, there is no error in the judgment of the circuit court of Wood county, rendered in this ease ; and the same is affirmed.

Judges Haymond, GreeN and Moore concurred.

Judgment Affirmed.