so thoroughly in harmony with the most obvious principles of justice, that in many jurisdictions the rule has emerged from its chrysalis condition and assumed the more dignified proportions of a statutory law. Thus, in the well known Penal Code of California, the rule is concisely stated in the following terms:

"A conviction cannot be had on the testimony of an accomplice, unless he is corroborated by other evidence, which in itself and without the aid of the 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." Desty, Penal Code of California, § 1111.

In the New York Code Criminal Procedure, § 399, a variant phraseology is employed expressive of the same intent. "A conviction cannot be had upon the testimony of an accomplice, unless he is corroborated by such other evidence as tends to connect the defendant with the commission of the crime."

The rule as to corroboration of accomplices is stated by the court in People v. Plath, 100 N. Y. 592, 53 Am. Rep. 236, as follows: "In cases where corroboration is required, there has been some diversity of opinion in the authorities as to the particular facts which should be corroborated and the extent of the corroboration needed in order to comply with the rule; but it is now conceded to be the general rule, that it should tend to show the material facts necessary to establish the commission of a crime, and the identity of the person committing it. When an offense was formerly proven by accomplices, it was the usual practice of trial courts to advise an acquittal, unless such evidence was in some respects corroborated by other testimony, although at common law a conviction upon the evidence of the accomplice alone was sustainable. In those cases, the extent and degree of corroboration rested in the discretion of the trial court, and necessarily varied according to the circumstances of the case. Although such cases are not strictly analogous to those where corroboration is required by statute, they yet furnish some help in determining the degree of proof required in the latter case. The rule as to the corroboration of an accomplice is stated in Roscoe, Crim. Ev. 122, as follows: 'that there should be some fact deposed to, independently altogether of the evidence of the accomplice, which, taken by itself, leads to the inference, not only that a crime has

been committed, but that the prisoner is implicated in it.' Russell, Crimes, 962, says: that it is not sufficient to corroborate an accomplice as to the facts of the case generally, but that he must be corroborated as to some material fact or facts which go to prove that the prisoner was connected with the crime charged.'" It is not necessary that this corroborative evidence of itself should be sufficient to show the commission of the crime, or to connect the defendant with it. It is sufficient if it tends to connect the defendant with the commission of the crime. Nor need the corroborative evidence be wholly inconsistent with the theory of the defendant's innocence. The court should be satisfied that there is some corroborative evidence fairly tending to connect the defendant with the commission of the crime, and when there is, then it is for the jury to determine whether the corroboration is sufficient. As was said in People v. Everhardt, 104 N. Y. 591, "the law is complied with if there is some evidence fairly tending to connect the defendant with the commission of the crime, so that the conviction will not rest entirely upon the evidence of the accomplice." People v. Elliott, 106 N. Y. 288.

Section 399 of the New York Code of Criminal Procedure, provides that "conviction cannot be had upon the testimony of an accomplice unless he be corroborated by such other evidence as tends to connect the defendant with the commission of the crime." Prior to the enactment of this section it was customary for judges to instruct jurors that they should not convict a defendant of crime upon the evidence of an accomplice unless such evidence was corroborated; and yet it was the law in this state that a defendant could be convicted upon the uncorroborated evidence of an accomplice, if the jury believed it. This section has changed that rule of law and requires that there should be simply corroborative evidence, which tends to connect the defendant with the commission of the crime. People v. Evans, 40 N. Y. 1; People v. Costello, 1 Denio, 83; Com. v. Downing, 4 Gray, 29; Whart. Am. Crim. L. 301; 1 Chitty, Crim. L. 904.

Bef the enactment of this code, it was well established that a conviction of crime could properly be had upon the uncorroborated testimony of an accomplice. People v. Costello, 1 Denio, 86; People v. Davis, 21 Wend. 313; Lindsay v. People, 63 N. Y. 143. It was the general practice of trial courts to charge juries that it was unsafe to convict without confirmation of an accom

plice as to some material fact of the case; this was not a rule of law, but rested in the sound discretion of the court, and the omission or refusal so to charge was not error.

ple, supra.

Lindsay v. Peo

Cases would necessarily be very rare in which there would not be some corroboration of the accomplice as to some material fact; and it was entirely safe to leave the question of the credibility of an accomplice in the hands of the jury. An examination of the statute and of the cases in which it has received judicial construction will clearly demonstrate the truth of this assertion.

In Com. v. Bosworth, 22 Pick. 399, Morton, J., in delivering the opinion of 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." See also Com. v. Holmes, 127 Mass. 424, 34 Am. Rep. 391; Marler v. State, 68 Ala. 580; Watson v. Com. 95 Pa. 424; State v. Graff, 47 Iowa, 384; Welden v. State, 10 Tex. App. 400; Best, Ev. 171. We have, then, the rule that the corroboration must § be by proof of some fact tending to connect the defendant with the commission of the offense, independently of the testimony of the accomplice, and the test is to throw out all other evidence and see whether the evidence introduced tended to show that the defendant was connected with the offense. State v. Maney, 54 Conn. 178.

The Texas supreme court held, in considering this question in Coleman v. State, 44 Tex. 109, that the rule of law forbidding a conviction on the testimony of an accomplice, unless corroborated by other testimony tending to connect the defendant with the offense committed, was under the statute positive and peremptory and that however much the jury might be disposed to credit the accomplice, the defendant could not be convicted legally, unless the evidence of the accomplice was confirmed in some material manner tending to show the defendant's guilt. And the learned justice said in that case, "To allow convictions to stand where the corroboration is only in immaterial matters, would be to violate both the letter and spirit of the statute, and to disregard these precautionary rules which experienced and wise jurists have

deemed it necessary to adopt in order to guard against erroneous convictions based on evidence unreliable, because coming from a corrupt source." And in the case of State v. Thornton, 26 Iowa, 80, the court said: "Admitting, as we do, that corroborating evidence is to be sufficient, must not merely relate to the commission of the offense or the circumstances thereof, but must be evidence of a character that shall connect the defendant with the commission of the alleged criminal act, it is the opinion of the court that evidence of this character was produced by the state." The corroborative evidence must be of some material fact and this was the rule in reference to the evidence of accomplices in this state, if corroboration were relied upon, and indeed, the general rule. What appears to be required is, that there should be some fact deposed, independently altogether of the evidence of the accomplice, which, taken by itself, leads to the inference not only that a crime has been committed, but that the prisoner is implicated in it. In the case of People v. Davis, 21 Wend. 309, the charge excepted to was that the accomplices of the prisoner were not to be believed by the jury unless confirmed by other credible witnesses in respect to the facts connecting the prisoner with the possession of the forged bills, or with the manufacture of them; but the court declared that no error had been committed, because it was not necessary by existing rules that every part of the testimony should be confirmed, the question usually being whether the jury will believe the witness in such parts of his narrative as the confirmation extends to, and quoted with approbation by the observation of Mr. Justice Anderson in summing up the case of Rex v. Wilkes, 7 Car. & P. 272, namely, that the confirmation he always advised juries to require, was the confirmation of the accomplice in some facts which went to fix the guilt on the particular person charged.

This subject has been very largely discussed. Note to Ala. Code of 1886, § 4476; 1 Am. & Eng. Enc. Law, 78; note to Com. v. Price, 10 Gray, 472, 71 Am. Dec. 671; Lumpkin v. State, 68 Ala. 56; People v. Haynes, 55 Barb. 450; People v. Clough, 73 Cal. 348. The fullest and ablest discussion of the question to which our attention has been directed is in Com. v. Holmes, 127 Mass. 424, 34 Am. Rep. 391. The opinion was by Gray, Ch. J., now Associate Justice of the Supreme Court of the United States. Among other things, he said: "Evidence which tends to prove the guilt

1

of the defendant is sufficient by way of corroboration, although it does not directly confirm any particular fact stated by the accomplice; as, for instance, evidence of the possession of stolen goods, by one indicted for stealing or receiving them." In Ross v. State, 74 Ala. 532, the corroboration was not of any particular fact testified to by the accomplice. The corroboration relied on was, first, the flight of the defendant, and, second, proximity and opportunity for committing the crime, it having been committed at an unreasonable hour. The trial court left it to the jury to decide whether these two facts sufficiently corroborated the testimony of the accomplice as to authorize the jury to convict upon it.

§ 325. Cross-examination of an Accomplice.-A trial court should permit the defense in the cross-examination of an accomplice to go into every species of questioning that can affect or impair his credit as a witness. The extent of cross-examination under such circumstances and for such a purpose, is largely within the discretion of the trial court; and unless the evidence shows that discretion to have been grossly abused, the appellate court will not reverse. Marler v. State, 67 Ala. 55.

It is another rule well recognized in cases where an accomplice gives evidence for the commonwealth, that the defendant may show a promise on the part of the district attorney to quash an indictment as to him. United States v. Hinz, 35 Fed. Rep. 272.

The act of an accomplice in testifying for the state, so as to criminate himself with others, is voluntary. He could not be compelled to do so. He testifies for the state, under a promise of favor, express or implied, on condition that he will make a full statement and confession in regard to the matter. His testimony comes in such a questionable shape, that it should, in the interest of truth and justice, be subjected to the severest scrutiny and acted on with the greatest caution. There is no case in which cross-examination is more desirable or important to test the credit of a witness, than that in which one man is seeking to save his own life or liberty, by swearing away the life or liberty of others.

But when one jointly indicted with others, turns state's evidence, and attempts to convict others by testimony which also convicts himself, the rule must be different, and he has no right to claim any privilege concerning any of the facts pertinent to the issue, nor any exemption from the broadest latitude of cross