purpose of testing the credit due him while on the witness stand.1

§ 324. Corroboration of accomplices.-While no presumption of law exists against the credibility of the evidence of an accomplice so that a conviction may be had upon his uncorroborated evidence alone,2 the jury is usually instructed or advised that the utmost caution should be employed in the reception and consideration of accomplice evidence, or that it should be submitted to the strictest scrutiny. Accordingly juries are generally advised that they may acquit the accused if the evidence of the accomplice is not corroborated, though a failure to so instruct is not ground for a new trial.'

The credibility of the testimony of an accomplice and the necessity for evidence corroborative of it before a conviction can be had are involved in some confusion. The proposition that an accused person may be convicted on the evidence of an accomplice alone, and that the testimony of such a witness should be corroborated, are both sound, though they involve a seeming inconsistency. The proposition that an accomplice must be corroborated is not equivalent to the proposition that there must be cumulative testimony from some other witness to the same facts to which he has testified. "If the testimony of the accomplice, his manner of testifying, his appearance upon the witness stand, impress the jury with the truth of his statement, there is no inflexible rule of law which prevents a conviction," provided, of course, the jury believe that the evidence of the accomplice tends to connect the accused with the crime charged.2

The character and degree of corroboration required may, to a certain extent, be measured by the enormity of the crime alleged, the moral perversity involved in its commission and the punishment which may be inflicted,3 so that conviction of a misdemeanor might be sustained without the production of independent corroborative evidence before the jury where such evidence would be required in the case of a felony. The corroboration of the evidence of an accomplice need not extend to every material fact. If, however, independent corroboration by other witnesses is required in any case, it must refer to that portion of the testimony of the accomplice which is material to the guilt of the prisoner. The corroborative evidence must tend to prove the guilt of the accused by connecting him with the crime committed, for it is of no importance whatever to corroborate the accomplice on irrelevant or immaterial details, or to show that he has not perjured himself Snow, 111 Mass. 411; State v. Moran, Reg. v. Young, 19 Cox C. C. 371; 34 Iowa, 453. McClory v. Wright, 10 Ir. Law, 514;

1 Cox v. Com., 125 Pa. St. 103; Col- Rountree v. State, 88 Ga. 457. lins v. People, 98 Ill. 584.

5 State v. Allen, 57 Iowa, 451;

2 See United States v. Reeves, 38 State v. Hennessy, 55 id. 299; United Fed. Rep. 404. States v. Howell, 56 Fed. Rep. 21;

3 Bell v. State, 73 Ga. 572; Rex v. People v. Elliott, 106 N. Y. 288; Jarvis, 2 M. & R. 40. Lumpkin v. State, 68 Ala. 56.

4 Reg. v. Farler, 8 C. & P. 106;

in stating matters not pertinent to the issue on trial and upon which he had no interest to testify falsely. The corroboration must bear directly or indirectly, not upon his general character for truthfulness, but upon the question whether, in this particular case and upon the facts involved, his testimony is reliable and worthy of credit by the jury in determining the guilt or innocence of the prisoner.1

The rule of the common law requiring the testimony of an accomplice to be corroborated under certain circumstances has been confirmed by statutes in some of the states. Thus, in New York, "a conviction cannot be had upon the testimony of an accomplice unless he be corroborated by such other evidence as tends to connect defendant with the commission of the crime."2 The confession of the accused is competent as corroborative evidence of the testimony of an accomplice. Whether the testimony of an accomplice is corroborated so that the guilt of the prisoner is proved beyond a reasonable doubt is a question for the jury to decide. But whether the evidence of the accomplice shall go to the jury is a distinct question for the court. If corroborative circumstances are proved from which, with the evidence of the accomplice, reasonable men may infer the existence of the guilt

1 Com. v. Bosworth, 22 Pick. 397, 299; Com. v. Holmes, 127 Mass. 424; State v. Jackson, 106 Mo. 174; Marler v. State, 67 Ala. 55; State v. Allen, 57 Iowa, 431; United States v. Ybanez, 53 Fed. Rep. 536; Com. v. Holmes, 127 Mass. 424; Cohen v. State, 11 Tex. App. 622; People v. Clough, 73 Cal. 348; 15 Pac. Rep. 5; Kilrow v. Com., 89 Pa. St. 480; Coleman v. State, 44 Tex. 109; People v. Elliott. 106 N. Y. 288; People v. Ogle, 104 id. 511; Watson v. Com., 95 Pa. St. 418; People v. Everhardt, 104 N. Y. 591; Com. v. Drake, 124 Mass. 21; State v. Kellerman, 13 Kan. 135; State v. Thornburg, 26 Iowa, 80; State v. Walker (Mo., 1888), 9 S. W. Rep. 646; Crowell v. State, 24 Tex. App. 204; State v. Banks, 40 La. Ann. 736; People v.

Grindell, 15 Col. 301; Com. v. Chase, 147 Mass. 597.

2 People v. Everhardt, 104 N. Y. 594; People v. Ogle, 104 id. 515; People v. Smith (Cal., 1893), 33 Pac. Rep. 58; People v. O'Neill, 109 N. Y. 251; People v. Elliott, 106 N. Y. 288; Bowling Green v. Com., 79 Ky. 604; State v. Godell, 8 Oreg. 30; People v. Clough, 73 Cal. 348; People v. Ryland, 28 Hun, 568; People v. O'Neill, 48 id. 36; Middleton v. State, 52 Ga. 527; Lumpkin v. State, 68 Ala. 56; Burney v. State, 87 Ala. 80; Myers v. State, 7 Tex. App. 640. See, also, McCalla v. State, 66 Ga. 346; State v. Hyer, 39 N. J. L. 598; People v. Courtney, 28 Hun, 589.

3 Partee v. State, 67 Ga. 570.

4 Com. v. Holmes, 127 Mass. 424; People v. Everhardt, 104 N. Y. 591.

of the accused, the court is justified in submitting the evidence of the accomplice to the jury under such a statute.1 Corroboration by evidence independent of accomplice evidence is not dispensed with where several accomplices are produced as witnesses against a prisoner. The accomplices are not deemed to corroborate each other.2

1 People v. Jaehne, 7 N. E. Rep. 290 (N. Y., 1889). That an accomplice is testifying under an express agreement of immunity is an objection to his credibility alone. Black v. State, 59 Wis. 471; Olive v. State, 11 Neb. 1.

Whitlow v. State (Tex., 1893), 13 S. W. Rep. 865; United States v. Hinz, 32 Fed. Rep. 272; People v. O'Neill, 109 N. Y. 251; State v. Williamson, 42 Conn. 261. But a failure to charge the jury to this effect is not reversible error. McConnell v. State (Tex.,

2 Rex v. Noakes, 5 C. & P. 326; 1893), 18 S. W. Rep. 645.

30

CHAPTER XXIII.

EXAMINATION OF WITNESSES.

8880. Order for witnesses to with- | § 338. Character of the writing

§330. Order for witnesses to withdraw from court-room. The presiding judge may, when he considers it necessary to a proper administration of justice, order the exclusion of all other witnesses from the room during the examination of a witness. The order, though not perhaps of right,' is seldom refused where it is at all evident that the ascertainment of

1 Vance v. State (Ark., 1892), 19 8. W. Rep. 1066; State v. Fitzsimons, 30 Mo. 236; Riley v. State, 88 Ala. 93; State v. Davis, 48 Kan. 1; Benaway v. Conyne, 3 Chand. (Wis.) 214; Barnes v. State, 88 Ala. 204; Kelly v. People, 17 Colo. 130; 29 Pac. Rep. 805; Nelson v. State, 2 Swan (Tenn.), 237; Binfield v. State (Neb., 1884), 19 N. W. Rep. 607; Er

rissman v. Errissman, 25 Ill. 136; Zoldoske v. State, 82 Wis. 580; 52 N. W. Rep. 778; Taylor v. Lawson, 3 C. & P. 543; Heath v. State, 7 Tex. App. 464; Com. v. Thompson (Mass., 1893), 33 N. E. Rep. 1111; Roberts v. Com. (Ky., 1893), 22 S. W. Rep. 845; Taylor v. State, 130 Ind. 66; Haines v. Territory, 3 Wyo. 166.