State v. Callahan

47 La. Ann. 444

• Court: Supreme Court of Louisiana
• Decided: July 1, 1895
• Docket: No. 11,597
• Status: Published

Opinions

The opinion of the court was delivered by

Watkins, J.

The defendant was convicted of the crime of having received a bribe within the meaning of the bribery statute of 1890, and prosecutes this appeal from a sentence to five years’ imprisonment at hard labor in the State penitentiary.

The charge of the indictment is that the defendant, being a member of the Oommon Council of the city of New Orleans, and, as such, a municipal officer thereof, on the 7th of November, 1898, feloniously did receive from one Lyman S. Widney the sum of five hundred ■dollars as a bribe, present or reward, for the purpose of influencing him, as such officer, to vote and exercise the power in him vested, ■and t j perform a duty of him required with partiality and favor.

During the progress of the trial quite a number of bills of exception were taken on the part of the defendant, to various rulings of the trial judge, and to which we will give our attention in the order ■of their occurrence and importance.

The first question in importance, and to which the counsel on either side have devoted their arguments chiefly, is that which relates to the admission in evidence of the check and stub of the check in the check book, and the entries made by the book-keeper in the cash book of the Pennsylvania Coal Company, of which Lyman S. Widney was agent.

This question became, in due course of proceedings, the subject of three bills of exception, which are numbered in the transcript, respectively, five (5), six (6) and seven (7) ; all of which are, by the State’s counsel, cumulated and argued in their brief, collectively.

L. S. Widney being on the stand at the instance of the State, and on cross-examination by the defendant’s counsel, the basis having been laid for his impeachment, counsel for the State handed to him the aforesaid check book, and asked him if the item exhibited to him was the stub entry for the cheek of five hundred dollars mentioned in his testimony, as having been drawn for the purpose •of getting the money that was paid to the defendant. To this, ■counsel for the defendant objected, because the offer was of a stub of a cheek book kept by Widney himself, and of which the defendant had no knowledge, and was not a party thereto; and further, because this was not the proper subject matter for re-examination.

This objection having been overruled by the court, and the testimony admitted, the defendant retained the bill of exceptions No. 5.

The ruling of the court on this question was as follows, viz.:

“ I regarded the check and stub as part of the res gestee. I make a distinction, in this respect, between the check and stub and the entries in the books, as eight days had elapsed from the drawing of the check up to the entry in his books, which was made November 15,” etc.

On the further re-examination of Widney, counsel for the State asked him if he did not direct an entry of the payment of five hundred dollars on the books of the coal company on the 15th of November; and to that question, and the answer proposed, defendant objected that any entry that Widney would make, or cause to be made, on his books was his own act.

To this objection counsel for the State replied, that inasmuch as defendant’s counsel had laid a basis for the contradiction of Widney, it was then competent for the State to corroborate him.

The objection having been overruled and the trial judge having admitted the testimony, the defendant’s counsel retained the bill of exceptions No. 6.

As the ruling of the court is the same on bill of exceptions No. 7, reference to it will be for the present deferred.

Thereupon, counsel for the State offered the entry in the cash book of the coal company in evidence; that is to say, the entry of the 15th of November, 1893, which was referred to by Widney, as having been made under his instructions, viz.: “Check marked in red ink 93, dated November 15. B. D. Wood & Sons, City Council two hundred and fifty dollars, immprovements two hundred and fifty dollars.”

In the course of the interrogation that followed it was disclosed that the writing of the stub of the check was in the hand of Widney, and the entry in the cash book was in the handwriting of the bookkeeper of the coal company, as well as the red marks on the stub.

William Cruzat, book-keeper of the coal company, was called as a witness for the State, and was interrogated with the view and for the purpose of corroborating Widney; and, in the course of his interrogation, answered that the entries in the cash book were made by him under the directions of Widney, as agent of the coal company. Thereupon, counsel for the State offered in evidence the cash book and ledger of the coal company, and the aforesaid entries therein of date November 15, 1893, to which the defendant objected because the entries were made therein out of defendant’s presence and without his knowledge; and further, because Widney could not be corroborated by his own books and by entries made in them in pursuance of his instructions and without the presence or knowledge of the defendant.

These objections having been overruled and the testimony submitted, defendant’s counsel retained the bill of exceptions No. 7.

Thereupon counsel for the State proceeded to examine the witness, Cruzat, with reference to said entries, etc.

Frcm bhe testimony of Widney, as well as from the check, stub and check book, it appears that five hundred dollars were withdrawn from bank on the 7th of November, 18S8 — the date laid in the indictment — and paid to the defendant on that date; and that the payment closed the transaction, in so far as the defendant was concerned, and in so far as the commission of the crime of bribery is concerned.

And, from the testimony of Cruzat, the book-keeper of the coal company, as well as from the entries in the cash book and ledger, it appears that he never dealt with the check at all, nor with the stub in the check book, otherwise than as directed by Widney. It further appears that Cruzat was, at the time the check was drawn and the money pa'id to the defendant by Widney, directed not to make any entry thereof in the books of the coal company at all, but to wait a few days; and that on the 15th of November, 1898 — eight days after the payment was made to the defendant, and the transaction closed — he was, by Widney, further directed to make the entry as it occurs on the cash book, and that he made same according to his directions.

Inasmuch as the reasons of the trial judge for overruling the defendant’s objections to the foregoing testimony, and those appended to the aforesaid last two bills of exception, are very succinctly stated we will incorporate them in their entirety, and take the liberty of extracting same from the brief of counsel for the State.

They are as follows, namely:

“And be it further remembered that the foregoing evidence and the testimony of the witness, Lyman S. Widney, a witness for the State, with the objections and exceptions reserved to the ruling of the court, are herein set forth with particularity, and are taken from the stenographer’s notes kept and taken at the time said evidence was given by the said witness.

“And now the defendant, by his said counsel, tenders this their bill of exceptions for signature, and pray that the same be filed and made part of the record.”

Per Curiam: “ I make part of this bill the written reasons on file for admitting the evidence, the statements of facts contained therein, the testimony of L. S. Widney and ffm. Cruzat, check-book stub .No. 512 of November 7, check No. 512 for five hundred dollars by .the Pennsylvania Coal Company on the Louisiana National Bank and the entries in the books of the Pennsylvania Coal Company, to which objections have been made and which are the subjects of this bill.

“The entries were not offered for the purpose of corroborating the testimony of an accomplice as to those facts which fix the guilt of an accused by identifying and connecting him with the commission of the crime, but for the purpose of confirming the witness’ narrative of facts, as far as possible, in all of its parts in order to sustain his veracity, which had been assailed in the manner stated in the written reasons filed at the time, and referred to above as made part hereof.

“The evidence was admitted at that time before the prosecution closed, in order to protect the State in case the accused should submit his case without offering any evidence, after having assailed the veracity of the State’s only witness to the most material and essential fact of the case. In such a contingency should the cause go to the jury on the uncorroborated testimony of an accomplice, and the veracity of this witness had been attacked in such a way as to suggest a slight yet reasonable possibility that his statements may be untrue, this might create such a doubt in the minds of the jury as would prevent them from basing a verdict upon such testimony and the cause of the State would be irretrievably crippled. As a matter of fact such a contingency did arise, as the defence submitted their case without offering any evidence whatever on the merits.

“ Before admitting the entries they were examined and found to contain no recital which had even the semblance of a tendency to identify or connect the accused, Callahan, with the receipt of the money. They did tend to confirm Widney’s statements as to the following facts:

“ First, as to the statement that he withdraw the sum of five hundred dollars from the business of the Pennsylvania Coal Company. See his answers to questions Nos. 351, 352, 370, 371, 372, 374, 375, 450 and 471. They did not confirm him as to what he did with the money after it was withdrawn.

“ Second, as to Wood’s interest in the transfer of the privilege and ■ his agreement to pay One-half. See answers to questions Nos. 48, 52, 54, 82, 83, 84, 85, 86, 619, 620, 621.

“Third, that this agreement was carried out; that Mr. Widney advanced the money and Wood was to return one-half, and it was so charged. See questions and answers 63, 64, 65, 351, 352, 364 to 375 inclusive, 499, 461 to 471 inclusive, 499, 82, 83, 85, 86, 649, 620, 621. It did not confirm him as to the manner of payment, nor the identity of the recipient, but merely as to the fact of payment and Wood’s responsibility for one-half.

“ Fourth, as to ali these statements and conclusions, from which were that Wood was his accomplice. See questions and answers Nos. 15, 29, 35 to 56 inclusive; 328 to 333 inclusive, and 503.

“ Fifth, as to the fact that an entry on the book had been made of the transaction; that is, that the five hundred dollars had been accounted for. See questions and answers 86 to 94 inclusive, 588, 590, 591; that the entries were made November 15, as sworn to by him in answer to question 588; that they were made under his instructions to Mr. Cruzat, his book-keeper, as sworn to in answers 588, 590 and 591. See also Oruzat’s testimony, Nos. 87M to 93, inclusive.

“Sixth, as to the fact that he was manager of the Pennsylvania Coal Company, since he had the power to draw funds from their business and to direct the book-keeper what entries to make in relation to them, and under no obligation to reveal the facts and details of the transaction. See answers 2, 3, 5, 87 to 93 inclusive, 146, 147, 149 150, 588, 590, 591, 424. See also Cruzat’s testimony, questions and and answers 7 to 16 inclusive, 38, 39, 42, 45, 46, 47; see also Judge Walker’s statement (of counsel for defendant) in Cruzat’s testimony that all entries were made under instructions and directions of Mr. Widney.

“ Seventh, they tended to confirm his sworn statements as to concealment of the transaction — concealing the details from every one, even his book-keeper. See questions and answers 407 to 430 inclusive, 622 to 628 inclusive. See also Cruzat’s testimony, 7 to 16 inclusive.

“ In conclusion I regarded those entries in the nature of statements' —written statements made out of court at a time unsuspicious, in due course of business and admissible to show that they involve a condition of things conforming to the witness’ sworn testimony at the trial.

(Signed) “James C. Moise, Judge."

With regard to the admissibility of the cheek and the stub as constituting part of the res gestee, we are of opinion that the ruling of the trial judge was undoubtedly correct. They were contemporaneous in date with the principal transaction — that is, the payment of the money to the defendant — constitute a part of it and illustrate its character. Hence they were properly admitted in evidence.

But with regard to the admissibility of the entries in the books of the coal company, and the parol testimony of Widney and Cruz at in respect to those entries, quite a difficult question arises, because Widney had directed those entries to be made by Cruzat in the absence and without the knowledge of the defendant eight days after the transacbion'was closed.

This is shown by the statement of the trial judge in his reasons for admitting the testimony, viz.: “Before admitting the entries they were .examined and found to contain no recital which had even the? semblance of a tendency to identify or connect the accused, Callahan, with the receipt of the money.

“ They did tend to confirm Widney’s statements as to the following facts,” etc. »

It is therefore evident that the judge did not consider these entries a part of the res gestee. He did not put his ruling on that ground, for he distinctly states that the testimony was admitted “ for the purpose of confirming the witness’ (Widney) narrative of facts as far as possible in all its parts in order to sustain his veracity, which had been assailed in the manner stated in the written reasons filed at the time and referred to above and made pari hereof." (Our italics.)

He finally states that he “regarded these entries in the nature of statements — written statements made out of court, at a time unsus-picious, in the due course of business, and admissible to show that they involve a condition of things conforming to the witness’ sworn testimony at the trial.”

We further extract from the brief of counsel for the State “the reasons of court for admitting books in evidence attached to bill No. 6”

They are as follows, viz.:

“ REASONS OF COURT FOR ADMITTING BOOKS IN EVIDENCE, ATTACHED TO BILL NO. 6.

“ On August IV, 1894, on the trial of this case, the State sought to introduce in evidence certain entries made upon the books of the witness, L. S. Widney, for the purpose, as announced, of corroborating the testimony of said witness, when such testimony had not yet been assailed. I asked counsel should not such evidence, if admissible, be properly offered in rebuttal. The suggestion involved in this question did not meet with acceptance upon the part of counsel, and he urged his offer, arguing its admissibility. It was contended that the witness was an accomplice of the prisoners and his testimony should be corroborated. It was ruled inadmissible. An accomplice being a competent witness, if credit be given his testimony it would require no confirmation from other evidence. The rule of law in this State is, a jury may convict on the uncorroborated testimony of an accomplice. State vs. Cook, 20 An. 145; State vs. Bayonne, 23 An. 78; State vs. Prudhomme, 25 An. 522; State vs. Crowley, 32 An. 782; State vs. Russell, 33 An. 138; State vs. Mason, 38 An. 476; State vs. Hamilton, 35 An. 1043.

“In Russell’s case, 33 An. 136, our Supreme Court held the following charge to the jury in the Prudhomme case (25 An. 522) to be correct. ‘ The jury may convict on the uncorroborated testimony of an accomplice; they are the judges of his credibility, and the rule requiring the judges to charge the jury that the testimony of any accomplice needs, confirmation is a rule of practice rather than a rule of law.’ And they say further: ‘ The rule requiring corroboration is a rule not of law, but of general and useful practice, the application of which is for the discretion of the judge by whom the ease is tried, and in its application much depends on the nature of the offence and the witness’ complicity.’

“ The rule as to the character of corroborative evidence in the case of accomplices is thus laid down by Russell on Crimes, Vol. Ill, p. 603, ninth edition:

“ ‘ There is a great difference between confirmations as to the circumstances of the felony and those which apply to the individual charged; the former only proves that the accomplice was present at the offence; the latter shows that the prisoner was connected with it. This distinction ought always to be attended to. Wilkes and Edwards were charged with stealing a lamb, and an accomplice proved the case against both the prisoners, and stated that they threw the skin of the lamb into a whirley hole, the situation of which he described, and a constable proved that he found the skin in the whirley hole. A quantity of meat was found of a kind corresponding with that of the stolen lamb in the house of Edwards, but could not be positively identified, and a witness proved that Wilkes had come to him to borrow a pair of shears, and had then made a statement to him to the same effect as the evidence of the accomplice. Alderson, J., said in summing up: “The confirmation of the accomplice as to the commission of the felony was no confirmation at all, because it would be a confirmation as much as if the accusation were against you and me, as it would be to those prisoners who are now upon their trial. The confirmation which I always require juries to require is a confirmation of some fact which goes to fix the guilt upon the particular person charged.” ’ (Italics are the court’s.;

“ ‘ The corroboration,’ says the same author, p. 602, ‘ must not only connect the prisoner and the accomplice together, but must be such as to show that the prisoner was engaged in the transaction which forms the subject matter of the charge under investigation.’ And after giving the facts of the case, cited Reg. vs. Farler, MSS. C. G., 8 C. and P. 106 (34 E. C. L. R.), and quotes Lord Abbinger as follows:

“ ‘ 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 confirmation be only of the truth of that history without identifying the persons, that is really no corroboration at all. See the many cases cited in illustration in Russ. Or. (9th Ed.), Vol. III, pp. 599 to 611 inclusive.

“Therefore, if such evidence is not confirmatory in its nature it is logically irrelevant, but it has never been considered sufficiently disconnected with- the main issue as to warrant its exclusion on that ground.

“ In the many cases cited, the evidence went to the jury subject to the charge of the court on its effect, but in every instance it was the testimony of a third person as to the same fact testified to-by the accomplice, and not a prior statement of the accomplice, oral or written, in substantiation of his own testimony, and thus amenable to another legal objection positively justifying its exclusion.

“Viewing the case at bar in the light of these principles, proof of the fact that an entry had been made in the books of Mr; Widney as to the withdrawal of five hundred dollars from his business on the date stated could not be objectionable, but to admit in evidence the entries themselves so that their recitals would be proof against the prisoner and binding upon and identifying him as the party who received the money, when it was not shown that he was present when the entries were made, or when Mr. Widney directed his book-keeper to make them, or that he was aware that they were made, would be contrary to the elementary principles of evidence.

“It would be competent to prove the withdrawal of funds from a business, or the withdrawal or delivery of goods from a stock of merchandise, or prove any other such facts in the due course of business, by such entries, under certain conditions, but they are not admissible to fix the identity of a person under the circumstances of this case as to his complicity in the crime charged.

“There must have been some evidence as a foundation to connect Callahan with the particular entries sought to be introduced in evidence. This position appears to me to have greater foree when the evidence was offered, not to prove an independent, substantive, relevant fact by a third person in corroboration of the accomplice’s testimony, but to corroborate him by his prior statements in his books when his testimony has not been assailed.

“Since this ruling the witness has been cross-examined and turned over to the State for redirect examination. The prosecution again offers the books in evidence for the purpose of substantiating the witness’ testimony, it having been positively attacked. It is claimed the situation has now materially changed, since a basis has been laid for the introduction of this evidence by the assault upon the witness’ veracity.

“ On the cross-examination there was a very strong effort made to weaken the testimony of the witness by the most searching interrogatories. The examiner announced in open court, in the presence of the jury, that the defence intended to prove that Callahan was not present at Widney’s office, as testified to by the latter. In other words, to prove an alibi. This announcement questions the truth of every fact sworn to by the witness in relation to Callahan’s visit to his office. He also laid the foundation for impeaching the testimony of the witness by propounding the necessary questions and summoning a witness for the purpose of contradiction.

He is, therefore, to be impeached and contradicted as to material facts in the case, and particularly as to what had taken place at his office at the time he paid Callahan, and under the circumstances stated. If this testimony in support of the witness Widney were not admitted, the State would be left in a crippled condition without an opportunity of repairing it, should the case be submitted. This was the ground for the ruling in the case of State vs. Fruge, 44 An. 165.

“ An attack having been made upon the veracity of the prosecuting witness, it is competent for the State to sustain his statements by every corroborating fact coincident with the history of the ease as testified to by him. It makes no difference whether or not such eonfirmation have a direct or indirect tendency to implicate the prisoner in the commission of the crime, it is relevant in order to sustain his truth, which has been called in question; to corroborate his narrative of the facts, which it has been sought to break down. I think this case, in principle, strictly parallel with that of Commonwealth vs. Wilson, 1 Gray, 138; State vs. Boyd, 38 An. 374; Greenleaf R. 469; Logansport & P. Grove T. Company vs. Heil, 118 Ind. 136.

“ In a prosecution for rape, if the prosecutrix, having been admitted to testify that she made complaint immediately after the fact, is impeached as to the fact of this complaint, she may be supported by proving she has out of court narrated the facts as testified to by her at the trial. Thompson vs. State, 38 Ind. 39.

“ I think it has been distinctly developed by the defence that fraud is to be attributed to Widney and that he never paid the sum charged to the prisoner at the bar. If fraud or improper conduct be imputed to the witness, the supporting evidence will be admitted. Greenleaf on Evidence (15 Ed.), Vol. 1, pp. 621, 622 (note C), citing Annesley vs. Anglesea, 17 How. St. Tr. 1348.

“ For these reasons I rule the evidence admissible.”

From the foregoing we have it affirmed by the trial judge that these entries were not offered for the purpose of corroborating the testimony of an accomplice as to those facts which fix the guilt of an accused by identifying and connecting Mm with the commission of the crime. That at a prior stage of the trial and before a basis had been laid for Widney’s contradiction, these entries had been offered on the part of the State, and rejected on the ground that to admit them as binding on the defendant, and identifying him as the party who received the money when it was not shown that he was present when the entries were made, “would be contrary to the elementary principles of evidence.” That these entries were admitted over objection after the basis had been laid for Widney’s impeachment for the purpose of corroborating his narrative of facts and to sustain his veracity. That since the credibility of Widney has been attacked the situation has materially changed and the entries have become competent evidence, though inadmissible before it was attacked ; and “ that it makes no difference whether or not such confirmation has a direct or indirect tendency to implicate the prisoner in the commission of the crime.”

That this affirmation of the trial judge be fully enforced, we make the following extracts from the brief of counsel for the State.

“The error into which the astute counsel representing this defendant have fallen, grows out of the assumption that the only corroboration of a witness who happens to be an accomplice whien the law will permit, is a corroboration as to those parts of his statement exclusively, which tend to connect the defendant with the crime charged.

“Their constant announcement of the rule was, that unless the testimony offered in corroboration had the tendency to prove some fact connecting the defendant with the crime charged, or to show any participation of the defendant with the accomplice at any stage of the transaction, it should have been scrupulously excluded.

“As written in the record, the history of the case establishes that the very character of testimony which was here objected to had previously been offered on behalf of the prosecution for the avowed purpose of corroborating the accomplice, Widney, and that when thus offered it was unhesitatingly rejected by the court as inadmissible for that purpose because it did not amount to a confirmation of some fact which tended to fix upon the defendant the commission of the crime charged in the indictment.

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“It is therefore obvious that the District Judge was in full accord with the defendant’s counsel in holding that the confirmation of an accomplice which is required must not only connect the prisoner and the accomplice together, but must be such as to show that the prisoner was engaged in the transaction which forms the subj'ect matter of the charge under investigation.

.“The evidence, however, was offered and admitted at the trial for an entirely different and distinct purpose. It was not introduced with a view to corroborate the testimony of an accomplice as to some material fact in order that the jury might be justified in convicting upon his testimony, but was offered for the purpose of supporting those of his statements which had been impeached by the opposing counsel, who had imputed to him improper motives and a recent fabrication of his account of the transaction by showing prior similar statements made by him before such bias or motive could have influenced his declarations.”

Counsel for the State then formulate the following propositions, and state their authorities thus:

“ Besides these cases there are also others where the supporting testimony is permitted solely because of the nature of the peculiar circumstances which exist. In this latter class of cases the impeached witness is not sustained by general evidence of his good character for truth and veracity, but by proof that at a time not suspicious he made a prior similar statement to the one, the truthfulness of which has been assailed. Therefore it is now laid down as a maxim of the law that where evidence has been offered tending to show bias, improper motive or recent fabrication on the part of a witness calculated to account for the testimony given, then prior similar statements, made before such bias or motive could have actuated the witness, may be given on redirect examination or in rebuttals. Best’s Prin. Ev. 633, note under subhead “Corroborating Statements;” 48 Cal. 85; Thompson vs. State, 38 Ind. 39; Robb vs. Hackley, 23 Wend. 50; Hayes vs. Cheatham, 6 Lea (Tenn.) 1, 10; Stelph vs. Blair, 68 Ill. 241. See also Henderson vs. Jones, 10 S. and R. 322; State vs. George, 8 Ired. (N. C.) L. 324; Dossett vs. Miller, 3 Sneed, 72.”

From the foregoing we have the proposition that the entries in the books, made under the direction of Widney, an accomplice, were inadmissible for the purpose of corroborating his statements of fact fixing the guilt of the defendant; but that when a basis had been laid by defendant for his impeachment, they became admissible, as a previous consistent statement, for the purpose of sustaining his veracity. Or, put in other words, it is that laying the basis for the impeachment of an accomplice constitutes him a witness, entitling him to all the privileges and immunities of a witness. That is to say, that an accomplice being, in contemplation of law, a person unworthy of credit, and whose testimony requires some confirmation to entitle same to full faith and credit, is relieved from this disability the moment a further direct attack upon his credibility is made; and eo instanti he becomes elevated to the plane of a trustworthy and credible witness.

It would seem that a legitimate deduction from that statement would lead to the opposite view. But, if this theory be correct, the distinction that is taken between witness and accomplice would appear to be more seeming than real.

That Widney is • an accomplice of the defendant appears on the face of the indictment; and on the face of the statute under which the indictment was found. See. 1, Act 78 of 1890. That section of the statute is couched in same phraseology as the the 173d article of the Oonstitution.

The trial judge recognized and treated him as an accomplice in his rulings in this case. .

Vide opinion and rulings above quoted.

That we be under no misapprehension with regard to the legal status of an accomplice who is placed upon the witness stand to testify in behalf of the State, let us look into the authorities on the subject, and see how they stand.

In Commonwealth vs. Bosworth, 22 Pickering, 397, the Massachusetts court stated the rule thus:

“ 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.”

And in treating of what confirmation is requisite the court said:

“ We think the rule is that the corroborative evidence must relate to some portion of the testimony which is material to the issue. To prove that an accomplice had told the truth in relation to irrelevant and immaterial matters, which were known to everybody, would have no tendency to confirm his testimony involving the guilt of the party on trial.”

That decision has been since adhered to and affirmed in that court in'the following cases, viz.: Commonwealth vs. Larrabee, 99 Mass. 413; Commonwealth vs. Elliott, 110 Mass. 104; Commonwealth vs. Stone, 111 Mass. 411; Commonwealth vs. Scott, 123 Mass. 222; Commonwealth vs. Holmes, 127 Mass. 424.

And the same rule has been adhered to and followed in the courts of other States. Vide State vs. Walcott. 21 Conn. 272.

The Georgia court states the proposition thus:

“ There is absolutely no evidence corroborating the accomplice, Thurman, in the sense of the law. We decided in the case of Childres vs. State, 52 Georgia, 106, that the corroborating circumstances must be such as connect the prisoner in some way with the crime. * * * That the conviction in the case at bar is based solely on- the testimony of Thurman. There are circumstances going to show he is guilty other than what he states,- but absolutely none that the prisoners are. * * * That (the accomplice) told the same tale when arrested is not only no corroboration by any matter connecting the prisoners with the crime, but it is illegal testimony any way.

“ It is strange to bolster up a witness by proof that he has told the same story before. We know of no authority for such a practice.” Middleton vs. State, 52 Ga. 527.

The Pennsylvania court states the rule thus:

“It is almost the universal opinion that the testimony of an accomplice should be corroborated as to the person of the prisoner against whom he speaks. Some fact should be proved by testimony independent of the accomplice, which, taken by itself, leads to the inference, not only that a crime has been committed but that the prisoner was implicated in it. To prove that the accomplice had told the truth in reference to irrelevant and immaterial matters * * * would have no tendency to confirm his testimony involving the guilt of the party on trial.” Watson vs. Commonwealth, 95 Pa. 424.

The California court pronounced the rule thus:

“ The acts of an accomplice are not evidence against the accused unless they constitute a part of the res gestee, and occur during the pendency of the criminal enterprise, and are in furtherance of its objects.” People vs. Moore, 45 Cal. 19; People vs. Stanley, 47 Cal. 113.

The Missouri court quotes with approval the rule as announced in Rex vs. Farlar, 8 Car. and P. 106, to-wit:

“It is a practice which deserves all the reverence of law, that judges have uniformly told juries that 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, the corroboration ought to consist of some circumstance that affects the identity of the 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 confirmation be only to the truth of that history, without identifying the persons, that is really no corroboration at all.” State vs. Chioyk, 92 Missouri, 395.

The foregoing extracts have been selected as pertinent to the question at issue,"and as illustrative of the consensus of the best judicial opinion on the subject; and we also refer to the following decisions, without quoting from them, as being equally decisive and authoritative: People vs. Elliott, 5 New York, 204; Boyce vs. People, 55 New York, 645 ; Armstrong vs. People, 70 New York, 38; People vs. Plath, 100 New York, 593; Coleman vs. State, 44 Texas, 109; State vs. Thornton, 26 Iowa, 80; Lamkin vs. State, 68 Alabama, 56; Ross vs. State, 74 Alabama, 532.

Nor is this so only of the adjudications of the other States of the Union, but like principles are announced by all text writers, of which we cite the following, viz.: 3 Rice Criminal Evidence, Sec. 325; 1 Greenleaf (14th Ed.), Sec. 381 and note; 1 Phillips Evidence, pp. 30, 38, 112; 2 Russell on Crimes, pp. 396, 956, 967, 968; 2 Starkie Evidence, pp. 11, 12; 1 Roscoe’s Criminal Evidence, pp. 120, 133, 155, 160; 1 Hale’s Pleas for the Crown, p. 305; Wharton Criminal Practice (9th Ed.), Secs. 442, 481, 490.

Mr. Bishop puts the proposition thus tersely: “Nor does the testimony of one accomplice confirm another.” 1 Bishop Crim. Proc., Sec. 1170.

Joy, Lord Chief Baron of the Exchequer of Ireland, says: “ Besides, these circumstances were deposed to by the accomplices themselves, and it is the first time I ever heard that an accomplice can corroborate himself by the circumstances which he swears to.” Joy’s Evidence of Accomplices, 35.

Recognizing these established principles, we held in a recent case that all the decisions and authors concur in the opinion that the tes-timonyof an accomplice can not be confirmed except “by evidence from a purer source.” State vs. Mason, 38 An. 476.

That decision is in strict keeping with prior and subsequent opinions of this court. State vs. Banks, 40 An. 736; State vs. Hamilton, 35 An. 1043; State vs. Russell, 33 An. 136; State vs. Prudhomme, 25 An. 532; State vs. Bayonne, 23 An. 78; State vs. Cook, 20 An. 145.

The trial judge recognized this rule of jurisprudence when he re* jected and disallowed in evidence the entries in the books of the coal company, on the ground that to admit them as binding on the defendant, and identifying him as the party who received the money, when it was not shown that he was present when the entries were made, “would be contrary to the elementary principles of evidence.” But when a basis had been laid for a specific impeachment of Wid-ney’s general character for truthfulness, the judge was of opinion— and so ruled — that the situation was, on that account, materially changed, and the rejected entries had become admissible evidence, “whether or not such confirmation has a direct or indirect tendency to implicate the prisoner in the commission of the crime.”

Entertaining this view he permitted the entries introduced on behalf of the State for the purpose of corroborating Widney’s previous narration of facts and of sustaining his veracity.

If this ruling be correct and must be sustained by this court, it is because an accomplice loses his character as such, and becomes a witness, as soon as a basis is laid for his impeachment.

To thus hold and decide would be equivalent to saying that a person who is unworthy of credit, and whose testimony needs corroboration to entitle it to full faith and credit, is relieved from that disability as soon as further formal assault is made upon his veracity, entitling him to the privileges and immunities of a credible and trustworthy witness.

We have been furnished with neither authority nor precedent for that proposition; nor have we been able, after most industrious examination of adjudicated eases and text-books, to find any precept sustaining it.

The only cases cited by the trial judge as sustaining that view are: State vs. Boyd, 38 An. 374, and Commonwealth vs. Wilson, 1 Gray, 133.

In our opinion neither of those cases have any application to the question under consideration, as they simply state the rule applicable to ordinary witnesses and make no reference to accomplices.

In the case of State vs. Banks, 40 An. 736, there was no question of the impeachment of either witness or accomplice. The accomplice had testified that the defendant had told him “where he had procured the axe with which the homicide had been committed; ” and another witness testified, in corroboration of that statement, that the accomplice “ had shown him the place where the homicide had been committed and the spot where the body of the victim had been found.”

The court properly held this testimony admissible for the purpose of corroborating the testimony of an accomplice; but it was admissible for the reason that it tended directly to establish the guilt of the defendant, and because it was the statement of a third person, disconnected with the case.

Even with reference to the admissibility of circumstantial evidence to sustain the veracity of an ordinary witness on the part of the State, the most recent opinion pf this court is adverse to the theory entertained by the trial judge, for in State vs. Guillory, 45 An. 31, the following occurs:

“ The trial judge assigns as his reasons for permitting the testimony to be introduced, first, that it was in corroboration of the testimony of one of the witnesses for the State, who had testified that he saw Ambrose Guillory hand a pistol to the accused when the quarrel began; second, that the testimony of said witness was the subject of an attempt, by the defence, to impeach and contradict him on that point.

“These reasons,” say the court, “ are in our opinion insufficient to justify the radical departure from elementary principles, in permitting hearsay testimony as a part of the affirmative evidence on the part of the prosecution. The judge’s ruling was clearly erroneous, and the accused is entitled to relief.”

In our opinion it is a contradiction in terms to treat of the impeachment of an accomplice, in view of the fact that being an accomplice attaches to his testimony such a degree of suspicion and jealousy that it is deemed unsafe for a jury to rely upon it without confirmation. The very object of impeachment is to discredit a witness; and if the statement of a witness is already discredited, by reason of his being ah accomplice, it would seem to be the work of supererogation to administer additional testimony looking to his impeachment.

This principle was affirmed in the People vs. Vane, 12 Wendell, 78, in which the New York court say that “ the witness stands impeached by the direct testimony given by himself, as in the present case. The witness shows on his direct examination that he was an accomplice; his testimony is therefore suspicious; it comes from a tainted source, and may well be doubted. In such case it seems to ■ me the principle applies that a witness who has been impeached may be supported.”

And Mr. Thompson in his treatise on trials, in announcing the same principle, says: “ It has been reasoned that when the witness is an accomplice this fact alone is an attach upon his credibility,” etc. 1 Thompson on Trials, Sec. 549, p. 466.

To the same effect is State vs. Twitty, 2 Hawks (N. C.), 449, and other cases in that court. And, inasmuch as testimony corroborative of the testimony of an accomplice must tend to establish the guilt of the accused, it would seem to be incompatible with both the reason and spirit of the rule to permit the introduction of any other character or species of testimony to sustain his general character for truthfulness, because of an effort to further impeach his credibility.

The whole question seems to be completely covered by the opinion in the Massachusetts court, in Commonwealth vs. Bosworth, 22 Pickering, 397.

In that ease the testimony of an accomplice was the sole reliance of the prosecution. The District Attorney sought to corroborate his testimony by that of other witnesses, and this was permitted over objection of defendant’s counsel.

“ For the purpose of impeaching the testimony of the accomplice,” says the report, u the defendant introduced a letter from him,” the accomplice, “ to the defendant, in which he admitted that his testimony in relation to this case, on a former occasion, was false * * *

“ The District Attorney, in order to corroborate the testimony of the accomplice for the purpose of supporting his general credit, then called sheriff and jailer to prove that the situation of the rooms and the arrangement of the prisoners therein corresponded with the account given by the accomplice. To the admission of this evidence the defendant objected, but the court overruled the objection and admitted the evidence.”

So that it is apparent that that case presents the identical question that confronts us in the instant case.

The court, first reciting the rule that is announced supra, to-wit: -“ that the corroborative evidence must relate to some portion of the ■testimony which is material to the issue,” held that it was not competent “ to prove that an accomplice had told the truth in relation to irrelevant and immaterial matters,” etc. And with regard to the attempted impeachment and the effort of the State to sustain his veracity, the court say further:

“We can not perceive how the circumstance that the witness told the truth about these public and common objects, concerning which he knew that proof was at hand, has any tendency to confirm the material parts of his testimony involving the guilt of the defendant.”

That opinion is perfectly conclusive and irresistible, to the effect ■that the testimony of an accomplice, whose veracity has been specially impeached, can not be sustained by any species "of testimony that has no tendency to confirm the material parts of his evidence involving the guilt of the defendant.

Nearly fifty years after that opinion was announced, it was again examined and affirmed by the same court in Commonwealth vs. Holmes, 127 Mass. 424, Mr. Justice Gray being the organ of the court. The courL style the Bosworth case as “ the leading case in this court on the subject; ” and, making a lengthy quotation therefrom,they affirm it on both propositions. Since that time the doctrine of the Bosworth case has stood unquestioned, and has been cited as authoritative by all subsequent text writers.-

In our opinion the principle on which the doctrine is founded is correct and fundamental, and, accepting same as correct, our conclusion is that the learned judge of the trial court improperly permitted the introduction in evidence of the entries in the books of the Fennsylvania Coal Company over the defendant’s objection, and that thus admitting same was reversible error.

Having reached-this conclusion, it becomes our duty to dispose of the defendant’s motion in arrest of judgment, which, in substance, presents the same question as that which was made the subject of discussion by counsel for the defendant, and figures in one of defendant’s bills of exceptions — the bill of exceptions which covers the ruling of the court on this question being No. 19.

The motion in arrest of judgment is couched in these words:

“ Sixth. Because the indictment fails to charge that the defendant was an officer or member of the General Assembly at the time it is charged he received the said sum.of five hundred dollars.”

As stating the construction of the statute most favorable to the defendant, we have selected and appended hereto the paraphrase of Sec. 1 of Act No. 78 of 1890, which is drawn in question, by the motion in arrest, which is as follows, viz.:

“ Any person who shall directly or indirectly offer or give any sum of money, bribe, present or reward * * * to any officer, State, parochial or municipal, * * * or to any member or officer of the General Assembly * * * with intent to induce such officer or member of the General Assembly * * * to perform any duty of him required with partiality or favor * * * the person giving or offering to give * * * and the officer or member of the General Assembly so receiving * * * any money, bribe, present or reward * * * with the intent, or for the purpose of consideration aforesaid, shall be guilty of bribery.”

It is quite true that the present indictment is founded upon the latter denunciation of the statute, namely, “ the officer or member of the General Assembly so receiving * * * any money,” etc., yet it is distinctly and immediately connected with the former denunciation of the same section of the statute.

“The words cso receiving’ evidently relate back to the words of the section first quoted with regard to the person who ‘ shall give any sum of money, bribe, present or reward,’ etc.; and, examining the words that intervene, we find the enumeration of these two denunciations to be ‘ any officer, State, parochial or municipal, * * * or any member or officer of the General Assembly.’ ”

We are of opinion that the words “ officer or member of the General Assembly” must be taken to refer to all persons enumerated in the foregoing portion of the act — that is to say, the State, parish and municipal officer, or member of the General Assembly; and this view is enforced by the fact that both denunciations are contained in one single sentence.

The motion in arrest of judgment is not good.

It is - therefore ordered and decreed that the verdict of the jury and the judgment and sentence thereon based, be annulled and reversed; and it is further ordered and decreed that .the cause be remanded to the lower court for a new trial according to law and the views herein expressed.