Wilson v. State

Campbell, C. J.,

delivered the opinion of the court.

The testimony in this case is very satisfactory as a support for the verdict. The convict and accomplice, Wall, is corroborated in his evidence by testimony tending strongly to convict Tom Wilson. Were this not the case, the jury might have convicted on the uncorroborated testimony of the accomplice, as has been often held.

We find no reversible error in the instructions given or refused. The court instructed liberally for the defendant. It told the jui’y “the testimony of an accomplice should be weighed with great caution, and the jury may disbelieve such testimony altogether, if they believe it untrue, the jury being the sole judge of the credibility of the witness;” and that “the jury are not bound to accept Wall’s evidence as true, or any part of it, if they believe it untrue, and the jury should weigh the testimony of an accomplice with great care and caution.” This was all the defendant was entitled to. The criticism is made by counsel for appellant that the clause, “ if they believe it untrue,” inserted in the instructions is not proper, because, he argues, that is equally applicable to the testimony of all witnesses, and no distinction is made between accomplices and others, when the jury is told it may disregard the testimony of an accomplice if it is not believed, since it may reject any testimony believed to be untrue. As to the operations of the mind in dealing with testimony, we are not aware of any distinction between the sources of it as affecting the right to reject it if it is disbelieved. Belief is not voluntary. One cannot believe as he pleases. The contaminated source of testimony may and should cause caution in examining and considering it, and may, in itself, lead to suspicion and distrust as to its truth, but it may compel belief, and, if it does, it is as g.ood a foundation for a result as any other. The testimony of an accomplice is from a suspicious source. It is to be viewed with caution and carefully scrutinized, because of its polluted source; but, being competent and admitted, it is to perform its office, and, if it se *885 cures credit notwithstanding its source, it is to be acted on ; if it is believed to be untrue, it is to be disregarded, just as any other testimony which does not command the assent of the mind.

The ninth and tenth instructions asked by the defendant were rightly refused, because they asked the court to charge that certain circumstances they severally mention were “ no evidence that he is guilty of burglary.” These circumstances, while in themselves not evidence of guilt, were some evidence, taken in connection with other evidence, tending very strongly to show the defendant’s guilt.

Instruction number eleven, a.sked by defendant, would be wholly useless in the hands of an ordinary jury, and, while true in its proposition, was properly refused as of no practical use.

The appellant complains because the court refused to instruct the jury “that the evidence of an accomplice should be weighed with great caution, jealousy and distrust, and the jury may disbelieve such testimony altogether.” The court said to the jury that such testimony “should be weighed with great care and caution,” and was to be rejected if believed untrue. This was enough. The court was not bound to pile up words suggestive of a desire for the jury to dismiss as unworthy of consideration the testimony of the accomplice. Having cautioned the jury as to the suspicious source of such testimony, it was proper to leave the jury to deal with it according to its effects on the minds of the jurors, who are hot likely to accept too readily such testimony. The rule is for the presiding judge to inform the jury that the testim.ony of an accomplice is to be received and considered with caution, as from a polluted and suspicious source, but it must, in large measure, be left to the judge to choose the language in which this caution shall be given. There is no uniform rule. Cases vary with circumstances. In some cases stronger words of caution might be more appropriate than in others. In Green v. State, 55 *886 Miss., 454 , the judgment sentencing to death was reversed because of the refusal of the trial court to give an instruction asked by the accused, to the effect that “ the testimony of an accomplice in crime should be received with the utmost caution, and the jury may wholly disbelieve such testimony altogether.” That case, in the opinion of the court, called for the instruction asked, the only one on that subject. But it was not the intention of the court to announce the rule that an accused person is entitled to have the jury instructed in the precise language of that instruction. If the jury is duly cautioned as to the testimony of an accomplice, the law is satisfied. In Cheatham v. State, 67 Miss., 335 , this matter is discussed, and the view we entertain expressed. In Commonwealth v. Holmes, 127 Mass., 424 , may be found a full discussion of the subject, including what is meant by corroborating testimony as relating to the testimony of an accomplice. See also 3 Rice on Evidence, § 319, where the whole subject is thoroughly treated.

Affirmed.