THE HONORABLE LESTER H. LOBLE, District Judge,
sitting in place of MR. CHIEF JUSTICE HARRISON, delivered the Opinion of the Court.
Defendant was found guilty of first degree burglary committed in Butte, Silver Bow County, Montana, on or about the [229]*22913th day of February 1957. He was sentenced to ten years confinement in the state penitentiary at Deer Lodge, Montana. A prior conviction was charged in the information and at the trial it was proved that defendant had previously served a five year sentence in the same prison on a plea of guilty to a like offense.
The Plea.
Defendant pleaded not guilty, requested counsel, did not testify, invoked the rule of exclusion, introduced no- testimony, but at the close of the state’s case asked dismissal for lack of evidence and failure to prove burglary as charged. Motion was denied.
The Verdict.
Following the verdict, defendant moved for a new trial on the ground that the verdict was contrary to the law and the evidence. Defendant appeals from the judgment, specifying error in that the trial court refused to grant his “motion for dismissal,” and refused to grant him a new trial.
The Facts.
Defendant was convicted on the testimony of an accomplice, corroborated by circumstantial evidence. Sufficiency of corroboration is the sole question presented on appeal.
The facts testified to by Carter, a Negro and the accomplice, are these: Thomas Henry Harmon, the defendant and a white man, and the witness had been acquainted about eight years. They met in the state penitentiary at Deer Lodge, Montana. When Harmon was released does not appear, but the witness had been released from Deer Lodge only two days before the present crime was committed.
A third person, Keith McMann, acted as a lookont, shared the loot and was arrested the next day with Harmon and Carter. McMann did not testify and does not otherwise figure in Harmon’s trial.and appeal.
The victim was Malcolm L. Ferns, a cripple who had lost a leg and walks on crutches, a pensioner living on a meager social security disability income.. At the time of the burglary, Ferns [230]*230resided in apartment No. 16-of a Butte rooming house located at •209 Colorado Street, apparently alone. It was Ferns’ custom ■to convert his monthly disability payment into traveler’s checks as soon as he received it.
The loot was four uneountersigned American Express Company traveler’s checks, one $10 bill and one $5 bill and less than $5 in silver and change. All this was removed by Harmon, •according to Carter, in the burglary of Ferns’ room. The checks were immediately passed by Harmon to Carter. The next day •Carter forged Ferns’ countersignature and cashed three of the checks to buy merchandise for Harmon, himself and McMann. The fourth check was lost or discarded and was found in the street.
On the night of February 13-14, 1957, Ferns was drinking in various Butte bars, among others the Silver Dollar and the Oasis. During the same evening Harmon and Carter were in Butte,- and in and out of the Silver Dollar Bar until closing time. Comparatively few Negroes reside in Butte, and ■ the presence of Harmon and Carter together was noticed. Ferns was in the Silver Dollar early in the evening and from there ■was helped across the street to the Oasis Bar by two “Good Samaritans;” not otherwise identified.
In the Oasis, Ferns cashed one of his remaining $20 traveler’s checks, “timbered” (paid cash) “across the plank” (the bar top) for drinks for the house and laid his checks and money out on the bar, and he also bought a bottle of wine to take home against the chill of the February night. Harmon was seated around the' elbow of “the plank,” two or three stools away, obviously sizing up the situation.
From the Oasis, Ferns went home by taxi and to bed. He picked up his ■ checks and money. Hannon finished his drink and in about twenty minutes drifted across to the Silver Dollar. There he invited Carter to join him in a burglary. The time was only about 11:00 o ’clock and Harmon cautioned they must wait a while. About midnight, Harmon, Carter, and McMann proceeded to Ferns room, a few blocks away. McMann [231]*231waited outside as a lookout. Carter stood in the hallway just outside Ferns’ room door.
Using a “loid” (strip of celluloid, a common burglary tool) Harmon, according to Carter, compressed the spring on the door lock, worked back the latch, entered Ferns’ room, turned on the light and took Ferns’ checks and money. Ferns slept on.
When Ferns awoke the next morning, he called the Oasis and asked if the swamper had found his checks. When told that “nothing was on the back bar,” and that no money had been found when the floor had been cleaned, Ferns stopped payment on the checks and reported them to the police as lost.
Harmon, according to Carter, had removed the cheeks and money, but had immediately passed the checks to Carter. At the trial, Carter emphasized that he had not entered the room and that Harmon had not entered any store with Carter to cash any of the stolen traveler’s checks.
Outside, Carter tore the traveler’s checks from the hook and threw the cover down on the street. Then the three men returned to the Silver Dollar Bar, split the currency and ordered a fresh round of drinks.
Either as they were returning from Ferns’ room or some time later during the night, Carter or one of the others lost or threw away one of the uncountersigned traveler’s checks. It was found in the morning not far from Ferns, rooming house by two women walking to a church meeting. These women assumed the check had been lost, but when they saw Ferns’name in a burglary story in the afternoon Butte paper, they turned the check over to the police. By then Harmon and Carter (McMann’s disposition is not shown) were already back in jail.
Legal closing time for bars in Montana is 2:00 a.m. At 2:30 a.m. Harmon was picked up again in the neighborhood of Ferns’ rooming house, by night police answering a prowler call. He was searched and booked as a drunk, but was released in the morning when the woman who had reported a prowler could not identify him. The officers noticed that Harmon was carry[232]*232ing a small pocket flashlight and two celluloid strips of the kind commonly used by burglars, one of the strips having a blue marking band. Carter volunteered that he had sent a taxicab around to the city jail in the morning for Harmon, but Harmon had already been turned out.
Harmon, Carter and McMann were arrested before noon on the complaint of a Butte haberdasher from whom Carter bought a hat for Harmon paying for it with one of Ferns’ traveler’s checks to which Carter crudely forged Ferns’ countersignature. When arrested, Carter had a wrist watch which he had just bought in another Butte store, using two other of Ferns’ checks. While Carter ■ shopped, Harmon and McMann waited at the curb in the Cadillac the three were driving, but the two white men with the Negro had been seen together cruising the Butte winter streets by too many Butte citizens that morning not to have escaped suspicion. When arrested, Harmon was wearing the newly purchased hat and had the two celluloid strips still in his coat pocket, one being a strip with the blue band. The police soon found the cover for Ferns’ book of traveler’s cheeks in the street where Carter told the police they would find it.
Briefly summarizing the corroborated evidence against the defendant Harmon, it may be séen that:
1. The accused was in the victim’s presence when Ferns “timbered”'at the Oasis Bar.
2. The accused was in position tü léarn the location of the victim’s room from the address Ferns gave the taxicab driver (assuming the accused did not already know it).
3. Each time the accused was arrested he was carrying two “loids,”'one with a blue mark; several police officers saw these at the time of each arrest; the accomplice testified the accused used a “loid” and carried two, one with a blue mark.
4. The accomplice said he threw Ferns’ check book cover down in the street. The police found it where the accomplice said he had thrown it. The two women found the fourth check in the same- neighborhood.
5. The accused and the accomplice were together in various [233]*233Butte bars before and after the time of the burglary; also they were together on the shopping expedition the following day.
6. The accomplice said he forged Ferns’ countersignature to two of Ferns’ checks to buy a wrist watch. When the accomplice was arrested he had the wrist watch.
7. The accomplice said he used another of Ferns’ traveler’s cheeks to buy the accused a hat. When arrested the accused, Harmon, was wearing the hat.
8. The accomplice and the accused, and MeMann, were together during the morning of their arrest. The accomplice, a colored man, was seen in the company of two white men, with a small dog, all cruising the Butte streets in a Cadillac the morning of their arrest. The jeweler who was bilked out of the watch reported them to the police. So did the haberdasher who was bilked out. of the two hats, immediately he noticed that the countersignature on the traveler’s check was.a forgery.
9. They were acquainted, served time together in the Montana State Prison at Deer Lodge.
These are but a few of the corroborating facts found in the transcript.
On this showing, the jury convicted Harmon of first degree burglary and the court sentenced Harmon to ten years in the state penitentiary. For both Carter and Harmon it was a. second offense. Carter, admittedly guilty of burglary and also, of forgery, had been outside the state penitentiary barely seventy-two hours.
It is urged in a dissenting opinion that the lower Court “set out the correct rule to be followed in clear and unmistakable language in its instruction No. 18” and the instruction is set forth. It is urged that “this instruction the jury ignored.” Honorable T. E. Downey, the Judge who tried the case, did not so conclude. He denied a motion for a new trial.
As hereinafter pointed out, the corroborating evidence need not be direct, it may be circumstantial; it need not be sufficient to justify a conviction, or to establish a prima facie [234]*234case of guilt; it need not be sufficient to connect the defendant with the commission of the crime; it is sufficient if it tends to do so. State v. Cobb, 76 Mont. 89, at page 92, 245 Pac. 265, infra.
Statutes.
Controlling statutes are R.C.M. 1947, section 94-7220: “A conviction [in this case burglary in the first degree as defined and penalized by R.C.M. 1947, sections 94-901 to 94-905] cannot be had on the testimony of an accomplice, unless he is corroborated by other evidence, which in itself, and without the aid of testimony of the accomplice, 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.”, and R.C.M. 1947, section 93-2001-1: “The jury, subject to the control of the court, in the cases specified * * * are the judges of the effect or value of evidence addressed to them, except when it is declared to be conclusive. They are, however, to be instructed * * *
“4. That the testimony of an accomplice ought to be viewed with distrust * * *”
Specifications of Error.
As stated, the defendant specifies that the verdict is against the law and the evidence. We carefully reviewed these specifications of error. The sole question is what corroboration suffices for conviction on the testimony of an accomplice. Thomas Henry Harmon, George Edward Carter and Keith McMann were all principals. State v. Bean, 135 Mont. 136, 337 Pac. (2d) 930. See also 12 C.J.S. Burglary, section 29, page 688.
“To support a conviction of two persons for burglary, it is not essential that the entry shall be by both, but if one of them entered and was aided by the other in so doing both •are guilty, and burglary may be committed by being present .and aiding another in entering. ” 12 C.J.S. Burglary, section 10, page 675.
“It is not necessary to show that a person accused actually [235]*235entered if it appears that he aided and.abetted in the breaking, and entering.’- 12 C.J.S. Burglary, section 29, page 688.
Direct evidence, by an eye witness, of the burglarious entry¡ is rarely available or required to sustain a conviction.
Rules of Law on Accomplices.
In Britain and in the American federal courts* the trial judge’s comments on the evidence include a cautionary ad-, monition against the well-known unreliability of an accomplice witness who may be seeking to protect himself. In American, state courts the cautionary admonition is . conveyed through formal written instructions couched in statutory language.: Reflecting Montana’s territorial status, the Bannack statutes of 1864 permitted conviction in the testimony of accomplices (Crim. Prac. Act, Chap. 3, section 12, page 178), including players in a gambling game , (page 243, section 175). The stat-. utes codified by the Virginia City Territorial Legislature in-1871-72 added the requirement for corroboration (Cod. Stat.. 1871, Crim. Prac. Act, section 316, page 238) “by such other evidence as shall tend to connect the defendant' with the commission of the offense or the circumstances thereof.” Emphasis supplied. Subsequent Montana Legislatures have extended the statute only to require (1) that corroboration must evidence more than the commission and the circumstances of the offense (necessarily known to all principals), and (2) the later cautionary requirement, met by British cautionary comment and American statutory instructions, that the testimony of an accomplice ought to be viewed with distrust.
The first, term of the Montana Territorial Supreme Court convened May 17, 1865, but it was not until the August term 1877 that an appeal involving the sufficiency of corroboration by an accomplice was presented to this- court. In the January-term 1878, the question was raised for a second 'time. These-are the eases of Territory v. Corbett, 3 Mont. 50, and Territory v. Mahaffey, 3 Mont. 112. These cases hold that an accomplice is treated • as any other witness, save that his credibility may be affected by the fact that' he is charged with the- same [236]*236offensé as the person against whom he testifies; that accomplices need not be corroborated on every item of testimony given by the same; and that testimony which tends to connect the defendant with the commission of the offense is admissible, though its weight is for the jury.
Since the time of these first decisions, the question has been carried to this court many times, not on the need for corroboration, which is statutory, but on the point of what is sufficient corroboration.
An accomplice is defined by Chief Justice Brantly as “one who knowingly, voluntarily, and with common intent with the principal offender unites in the commission of a crime. * * * One may become an accomplice by being present and joining in the criminal act, by aiding and abetting another in its commission, or, not being present, by advising and encouraging its commission; but knowledge and voluntary actions are essential in order to impute guilt.” State ex rel. Webb v. District Court, 1908, 37 Mont. 191, 200, 201, 95 Pac. 593, 597, 15 Ann. Cas. 745, jury tampering; included with citations in 3 Jones on Evidence, 5th ed., section 813 at page 1525.
Necessarily, an accomplice must be in some manner a party to the crime. By custom he is called an accomplice when testifying against another party to the same crime. See 14 Am. jur., Criminal Law, section 108, pages 839-40.
An accomplice was again defined by Chief Justice Brantly in the often cited Spotted Hawk murder appeal as “one who is guilty of complicity in the crime charged, either by being present and aiding or abetting in it, or by having advised and encouraged it, though absent from the place at which it is committed.” State v. Spotted Hawk, 1898, 22 Mont. 33, 65, 55 Pac. 1026, 1036 (Whirlwind’s confession at page 57 of 22 Mont., at page 1033 of 55 Pac. is the corroborating testimony), and this definition is repeated by Justice Matthews for the full court, with a review of the intervening cases, in State v. McComas, 1929, 85 Mont. 428, 433, 278 Pac. 993. The definí[237]*237tion has long since become stare decisis in Montana. See also, State v. Geddes, 22 Mont. 68, 55 Pac. 919, and a companion murder ease, State v. Welch, 22 Mont. 92, 55 Pac. 927; State v. Jones (robbery), 95 Mont. 317, 325, 26 Pac. (2d) 341, and, the most recently decided, State v. Bean, cited supra.
Corroboration is confirmation, that which confirms, proof. See People v. Bowlby, 135 Cal. App. (2d) 519, 287 Pac. (2d) 547, 53 A.L.R. (2d) 1147. In a legal sense corroboration is something which leads an impartial and reasonable mind to believe that material testimony is true. “Corroboration may also consist in admissions, declarations or conduct of the defendant, writings or other documentary evidence which tends to show concert of action between the accomplice and the defendant * * *.” 3 Jones on Evidence (5th ed.), section 814, page 1526, citing Territory v. Mahaffey, supra. Emphasis supplied. “The question as to the competency of a witness is, of course, to be resolved by the court.” Jones, supra, section 815, page 1529.
<<# # # jf the trial judge is satisfied that the evidence is corroborative, it is his duty to submit the case to the jury, and it then becomes a question for the jury to determine what effect should be given to the corroboration and whether it is sufficient to warrant a conviction.” 22 C.J.S. Criminal Law, section 813, page 1417, citing State v. McComas, supra, and State v. Donges, 126 Mont. 341, 251 Pac. (2d) 254. The test under R.C.M. 1947, section 94-7220, is that the corroborating testimony tends to connect. State v. Bolton, 65 Mont. 74, 212 Pac. 504; State v. Yegen, 86 Mont. 251, 283 Pac. 210; State v. Jones, supra; State v. Deschamps, 118 Mont. 566, 168 Pac. (2d) 335. It may even be entirely circumstantial. State v. Ritz, 65 Mont. 180, 211 Pac. 298; State v. Yegen, supra; State v. Jones, supra.
The rule on corroboration is well put by Mr. Justice Holloway in State v. Cobb, 76 Mont. 89, at page 92, 245 Pac. 265, at page 266, where he says:
[238]*238.“(a) The corroborating evidence may be supplied by the defendant or. his witnesses.
“(b) It need not be direct.evidence — it may.be circumstantial.
“(c) It need not extend to every fact to which the accomplice testifies.
“(d) It need not be sufficient to justify a conviction or to establish a prima facie case of guilt.
“(e) It need not be sufficient to connect the defendant with the commission of the crime; it is sufficient if it tends to do so.
“(f) Whether the corroborating evidence tends to connect the defendant with the commission of the offense is a question of law, but the weight of the evidence — its efficacy to fortify the testimony of the accomplice and render his story trustworthy — is a matter for. the consideration of the jury;” State v. Cobb, supra, has often been followed by this court. See State v. Yegen, supra; State v. Jackson, 88 Mont. 420, 430, 293 Pac. 309, 311; State v. McComas, supra; State v. Donges, supra; State v. Duran, 127 Mont. 233, 236, 259 Pac. (2d) 1051, 1052; State v. Phillips, 127 Mont. 381, 387, 264 Pac. (2d) 1009, 1012; State v. Slothower, 56 Mont. 230, 182 Pac. 270; State v. Kitz, supra; State v. Keckonen, 107 Mont. 253, 84 Pac. (2d) 341; State v. Jones, supra.
State v. Cobb, supra, has clearly established the formula by which the facts are judged. Bach case rests on its own facts with the above formula applied to those facts. The corroborating evidence need not be sufficient to justify a conviction or even to establish a prima facie case of guilt. The corroborative evidence here raises more than suspicion; it is inconsistent with defendant’s constitutional presumption of innocence; and it identifies the accused as the criminal the accomplice says he is. Jones on Evidence (5th ed.), section 814, page 1526. It tends to 'connect.
While not essential to'this opinion, the early English cases and authorities following are of judicial historical, interest in [239]*239the evolution of the doctrine permitting an accomplice to testify. Tho. Tonge’s case, Kelyng 17-18, 84 Eng. Rep. 1061; the trial of Titus Oates (1685), 10 How. St. Tr., 1079 at 1185, and the treason prosecution of Robert Charnoek, et al., tried at Old Bailey, 11 March 1696, 12 How. St. Tr., 1377, 1403-1405; Hawkins’s Pleas of the Crown, 4th ed. (1762), Book 2, Chap. 46, section 18, page 432. Some subsequent English authorities are Regina v. Farler (1837), 8 C. & P. 106, 173 Eng. Rep. 418; Rex v. Baskerville (1916), 2 K.B. 658, 677; and Baron Joy’s “Evidence of Accomplices” (1884), quoted at length in VII Wigmore on Evidence (3rd ed.), section 2057, pages 322, 323.
The hazard that an innocent man will be convicted by an accomplice who, as Chamock pled so bitterly three hundred years ago, “would by swearing against me take away my life to save his own” has in the instant case been repelled. The corroborating evidence tends to connect the defendant with the commission of the offense. Of its sufficiency, we entertain no doubt.
The judgment of conviction is affirmed.
MR. JUSTICES ANGSTMAN and CASTLES, concur.