Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1871-07-10

Application for a New Trial in Case Of State
~. Graves and PsstoA, Convicted
Of Murder in the Grim
lnal Court.
Majority Of the Supreme Court for a New
Misunderstanding Opinion Of
Isdgs Freeman.

8a h6LA rs civil CAar1s tAC PLOaAIRNACA
innocence is gone, M the presumption IL
in this court that they are guilty. In or
der to obtain 3 new trial they must elthel
show that the weight Of the evidence Il
against the verdict of b jury, or that the
court has failed to give them the benent o.
q fair statement of the law OF the case on
their trial in the court below.
The irst question we do not discuss in
this opinion, for the obvious reason the
case must go back for
NEw TRIAL
before a Jury, under the opinion OF
q majority Of the court. It would,
therefore, be improper to refer to
or comment on the facts.
We propose to look at b question
raised on the charge of bis Honor, the
Circuit Judge, or the weight to be given
TO the testimony of an Rccompnce, and
the true rule of law as well as practice in
such cases.
Can the Jury convict on the uncorrobo-
rated testimony of an accomplish, II they
believe, after applying all the usual tests
known in our law, to the credibility OF the
witness, he has testified to the truth; or
must they, Notwithstanding the fact that
his testimony generates fun belief OF the
guilt of the accused beyond a reasonable
doubt, still acquit the prisoner, unless his
story Is corrobOrsted by other testimony
We axe 1t this Is the real question 20 be
decided.
Another question growing out Of this Is,
to what extent the corToborGtiOnshould go
whether 70 any facts that tend to support
any part, or any material part, Of his tes-
timony, or whether shall be required
as to the verify of the guilty perpetrstiOn
Of the act for which the party stands in
dicled.
we hold that both on principle and au-
thoritY,
JURY NAY coNvICT ON THE TESTIMONY
OF AN AcCoMPLICE ALONE.
It Is not denied that an sccomplics is q
competent witness, although his expecta-
ton of pardon depends upon the defend
ants conviction. (WhRr. CT. law, vol. l,
s.. 1881. It would seem natural that If his
testimony Is competent, and be allowed
to 20 to the jury, and he allowed to give
as q witness 9 detail Of the facts of the
transaction out Of which the guilt of the
prisoner Is to be deduced, that such testi-
mony so admitted should be weighed by
the jury for what it is worth, deducing
| from il such conclusions as they think
warranted, after taking into view all the
circumstances calculated 70 detract from
its weight, or which, on the other hand,
tend to strengthen it.
This it seems to US, IL the sound prin-
ciple that should be fairly applied to
such testimony. It is the principle on
which all other testimony Is to be weighed
by the Jury, who, by our system, are
made the peculiar and exclusive judges OF
the facts and what weight shall be at
tached to them. This principle applies
with much more force In ouI State, where
Il is also held, the writer of this opinion
thinks, in 8 n not warranted by a
sound exposition Of b Constitution, to
be both judges OF the law and the facts.
BUT TO THE QUESTION ON AUTHORITY:
Mr.. Greenlesf on evidence, vol. l, s
879, after stating that it is q settled rule
of evidence, that q pdTticeps cTiRgi4iS- |
Notwithstanding the turpitude Of his con-
duet, is q competent witness, adds 1.-THE
admission Of sccomplices, Is witnesses for
the government is justified by the neces- |
sity Of the case, il being often impossible
to bring the principal offenders to justice
without them. This is on all hands ad-
mitted TO be the ground on which an &C.
complete is admitted IS q witness against
his fellows in crime. II the object, n
principle Of such admission be as stated,
then why shall q rule be adopted, that in
8 large number of cases, will practically
defeat the purpose, or ground, on which
the testimony is admitted; for It Is not
sufficient to procure the conviction when
admitted, why not let b rule oei mat ne
IL not only competent In cases where the
State shall first furnish 3 network OF cor
roborstinR circumstances sufficient to sns-
tain snd e~orrOborate q statement OF facts
made by Bn sceOmplice, which Of them
selves would amount TO nothing for II
his statement will not DO TO convict on, IL
amounts to nothing of itself, but Is de-
pendent alone for its force on other testt-
from other sources, May, 1t seems
TO Us, as well be left out of the case alto
gethsr.
In sect. $50, Mr.. Greenlesf says: 1.-THE
degree Of credit which ought to be given
to the testimony OF an accomplish, Is q
exclusively within the province of
the Jury. 1t has sometimes been said, that
they ought not to believe him, unless his
testimony Ia ~corroborsted by other evil
denee; and without doubt, great caution in
weighing such testimony Is dictated by
prudence and good reason, But
there IS no such rule Of taa0, It being ex-
pressly conceded that the jury may, If
please, act upon the evidence OF the
secOmplice alone, and without any con-
armation of his statement" For this
rule he cites, we believe, eight cases from
The English and American courts. he I
yoes on aud says: " But on the other
hand, Judges in their discretion, will ad. /
,ise 9 Jury not to convict of felony upon I
testimony Of an accomplish alone, and i
Confederation - and he adds, /
: 1t is so generally the Prsctlce 70 give
hem such instructions, that a failure TO 6
10 so would be regarded as an omission
II duty on the part of the judge.
While he lays dow the practice to be
o advise the acQulttal land In this he 1
ollows the almost universal current of
Iulhorityl unless the witness Ia confirmed 8
n some material part Of the case; yet 1t is
,nly the sdvice of the judge to the jury, '
Is he says, ait Is expressly conceded that 9
he Jury may, If they please, act upon the
Of an accomplish, without any g
onhrmRtion Of his statement and there O
8 nc such rule of law, he says, 4" that rs b
Iuires q jury not to believe such witness c
his testimony Is corroborsted." /
We believe this Is about as, strong q d
tstement Of the rule In favor Of corrObO- v
alton as can bs found In any work OF U
ccredited authority. b
Mr.. wharton, whose work on Or. LsW I
be considered IS a standard one in b
america p. 7S3 says: Hthe prepondersnce Il
( authority in this country IL that a U
airy may convict 8 prisoner on the testi- 81
1Ony of an accomplice alone, though the Q
ourt may, &c its discretion, advise them D
D scquit, unless such testimony Is Ger q,
on material points. For Q,
ais he cites twelve cases from 81
ur State and Federal Courts. New trials,
Owever, he says have been refused, wen If
here the verdict was obtained in such t.
uneorroboratsd. 1t has even 81
said that where the accomplish, on 8 q,
AA0A 0GlLaA0AH oQAA9A OA OoNAn I'll 4 81
nowledge of the facts to which he testi- in
% ct the trial, yet this goes only to his T
edit; and II the jury Snd q verdict of v,
on his test nOny, and the n
,urt before which the tri a is bad be salts as
ID with the verdict, an appellate court In
i'll not set It aside. On p. 7SS, be says; "a
II the question DO still pen II may not TO
improper to suggest that after all the %
User and more humane curse is always b,
tell the Jury that II the sccomplice be OF
l~cOrroborated as to the person OF the IA
cused, they must acqUit." 81
These writers, il seems to us, settle the il
that the advice of the Judge ss ps
duty of jury TO acquit, unless the sc- OF
mpltce IL oO~rrObOraIed, is q matter en- u
ely In his discretion, TO be exercised In "a
eW of all the circumstances OF the trial, Its
@ witness being before him and he hay ID
z 3 chance to witness his department pe
d bearing, and being far better able to th
dge of the propriety of giving such We
than q revising tribunal can posi- 10
y be. In the language Of Chief Justice Lei
Irvis, in Rex Va. Stubbs. $50. Eng. L. be
ID Eq. r. $50; at is not 3 rule Of law fir
sc accomplices must be confirmed in 20
to render q conviction valid" so
The Supreme Court of North Carolina tn
case Of State va. Hsney, opinion by tic
ldge Castor, says: This o under tn
the rnle TO be, that the un- sic
pported testimony Of an accom- Oh
Ice, II It produces u~ndoubting be- or
Il Of the prisoners guilt, Is sufficient st
warrant q verdfcs affirming his tel
tilt. Such is certsinly the law Of the as
untry from which we haYe derived the tn
ineiples of our jurisprudenee." He ga
5ss Hale's pleas Of Crown end Hawkins Ia
T this rule, and then says; "rhe very IA
int was sdjudged solemnly, by the Of
TelVe judges Of England in Atwood and csI
)bins' case b1rst-Leach or. cases, 464. ha
no held unanimously that an accom- tn
Ice Is 8 competent witness; and, If the be
~ weighing his testimony think him OF
lrthy Of belief, q conviction, supported Ia
szch testimony alone, Is perfectly le- pa
1 "a than nllaa Ind Eilanhnrnn0h in he