Defendant Kathan, a lawyer, engaged to defend Wolf under indictment for picking the pocket of Haibele, authorized Heene to pay Haibele the money taken and twenty-five dollars in addition, and delivered the money to Heene for that purpose. Heene handed the money to Haibele. The People charge that Kathan’s purpose was to bribe Haibele. Kathan’s statement is that his purpose was to make restitution and pay Haibele for time lost, so that upon a plea of guilty by Wolf the restitution might lessen the punishment. .Hence the act of payment was a crime only if done with intent to bribe. ■ Heene testified to instructions from Kathan, which, if given, clearly showed guilty purpose. Kathan denied that he gave such instructions. So the accomplice affirms; the principal denies. . The evidence of ah accomplice has not probative strength to overcome the presumption of innocence. It must be aided by some other evidence. The court must decide whether corroborative evidence is present. The jury must decide whether such evidence is sufficient in connection with that of the accomplice to establish the offense beyond a reasonable doubt. The evidence of the accomplice segregated is impotent. Corroborative evidence may give it persuasive power. The confirmatory evidence furnishes a means for .testing the truth of the statements of the confessed criminal, and, if added to it, proof may result. Could the jury in the due administration of justice find a verdict of guilty in this case, if uninformed that the evidence of the accomplice unsupported was' powerless ? Evidence corroborative in some degree is found (I) in the acknowledged participation in the payment of the money, although for an avowed, lawful purpose; (2) in the statements and exclamations made to Heyser, the lawyer for Heene, after the latter’s arrest. Such evidence is assisted by inferences from the circumstances and nature of the act itself. Such evidence in a legal sense tends to corroborate, and it was the function of the jury to determine whether it did. corroborate Heene, and whether his evidence so helped amounted to requisite proof of guilt. By inadvertence and in absence of request or suggestion by the defendants counsel, the learned trial justice did not state, to the jury the law that made the evidence of Heene usable or not usable. The jury was not told that the evidence of Heene standing alone *313could not show a guilty purpose on the part of Kathan, and that there must be other evidence tending to show guilty purpose, and so found by them, which united to the evidence of the accomplice, if believed, established the crime beyond a reasonable doubt. Ho jury could intelligently answer the submitted question without advisement that the evidence of an accomplice has no intrinsic vigor unless energized by independent and credible evidence. This advice was omitted in a charge showing painstaking impartiality. Highly capable counsel silently acquiesced. Should this court decide that what was so overlooked by all concerned demands a new trial? Some of my associates are of the opinion that there was no corroborative evidence. I do not concur in such conclusion, but nevertheless here is judicial opinion that there was no corroborative evidence. In the light of such opinion how much the more important does it seem that the very question whether there was corroborative evidence should have been submitted to a jury. I think a new trial should be granted upon the ground that justice in its due administration in this case demands a verdict based upon proper instruction as to the use that may be made by the jury of the evidence of an accomplice.
Woodward, Jenks and Rich, JJ., concurred save as to the sufficiency of the corroborative evidence.