The main question in this case is, whether the testimony of a witness who was present when the homicide was committed, but who did not in any way participate therein, but who for a time thereafter may have concealed the fact, is sufficient, without other evidence, to authorize a conviction, under section 3755 of the Code.
This question must be answered in the affirmative. The witness, Julia Blocker, was not even an accomplice within any sense of that term. She did not participate in the crime as actual perpetrator of the offense, or as principal in the second degree. She was not accessory before the fact, and from the facts set forth, she was not even accessory after the fact. Code, §§4305, 4306, 4307, 4308. Even if she had been an accessory after the fact, this would not have rendered her an accomplice, within the meaning of that'term as used in §3755 of the Code.
The charge requested by the plaintiff in error upon the subject of the testimony of an accomplice was properly declined by the court. And the charge as given by the court was fully as favorable as the accused had any right to expect, and under the facts of this case, we think more so.
2. The evidence submitted on the trial warranted the finding of the jury.
3. There were other points insisted on by the counsel for plaintiff in error, but we find, upon an examination of the motion for new trial, that they are not embraced therein. Where a motion for new trial is made by a losing party, all errors complained of must be embraced therein, otherwise they will be considered as having been waived; any other practice would operate unjustly to the court below, the presumption being that he would have corrected those errors, if he had had an opportunity.
Let the judgment of the court below stand affirmed.