The request of the defendant’s counsel refused by the court was, that the court should charge “ that the finding of the tools in Mr. Patterson’s office is not any evidence of corroboration of Annie Walters on this question of the committing an abortion, as against Mr. T.”
Two things were to be proved. 1. The commission of the abortion. 2. The connection of Tedder with the act.
If the finding of the tools tended to the corroborate Annie Walters on the former, the proof was admissible. If admissible it was admissible against Mr. Tedder.
Had the defendant’s counsel asked the court to charge that this evidence did not tend to corroborate Annie Walters in respect to connecting Mr. Tedder with the alleged crime, he would have made a proper request.
But suppose the court had charged as requested; what would the charge have been % That as against Mr. Tedder the finding of the instruments was no corroboration on the question of committing an abortion. That would not have been correct.
True, the evidence did not tend to connect Mr. Tedder with *28the act of committing an abortion. But it did tend to corroborate Annie Walters in her testimony that an abortion had been committed.
It was competent as against Mr. Tedder for that purpose. And the judge did not say that it was competent as corroborating her evidence about Mr. Tedder’s connection with the act.
A burglary is alleged to have been committed. Burglars’ tools found at the placeare competent evidence that a burglary has been committed. They do not, of themselves, tend to connect the prisoner with the crime. But, they are competent as against him.
It is not to show that Annie Walters told the truth in one instance, and therefore is to believed in the other, that the evidence is given. It is to prove the fact of the abortion, so that this shall not be left to her unsupported evidence. As to connecting Mr. Tedder with the act, her evidence, under the usual rule should also be corroborated.
I see no error.
Bockes, J.The only point of difficulty in the case, as I think, is that considered by Mr. Justice Landon in his opinion growing out of the refusal of the court to charge the jury “ that the finding of the tools in Mr. Patterson’s office, was not any evidence of corroboration of Annie Walters on the question of the committing of an abortion, as against Mr. Tedder.” The court had instructed the jury, immediately preceding such refusal, at the instance of the defendant’s counsel, that the witness Annie Walters must be in all things corroborated on matters connected with the crime. Then followed the request to charge as above stated, which request was refused. The request, as will be observed, went to or bore upon the question, whether an abortion had been committed. This was the leading fact to be proved in the case—a fact necessary to be established against the defendant in order to convict him of the offense for which he was on trial. How, any proper evidence bearing upon this leading fact was competent as against the defendant. The witness, Annie Walters, testified to facts and circumstances attending the commission of the act by Patterson in his office, *29the defendant not being present. She testified to his use of an instrument upon her person.
Proof was given of the finding of implements useful for the purpose intended to be accomplished, in Patterson’s office. Now for the court to have charged as requested, that the finding of the tools in Patterson’s office, was not, as against the defendant any evidence in corroboration of the witness, on the question of the committing of the abortion, would have been improper, hence the refusal was not error. Had the request been this ; that this evidence did not corroborate this witness in her statement connecting the defendant with the erim of abortion testified to by her, the case would have been quite different. Judging from the Whole tenor of the trial, this instruction would have been given by the court, had a request therefor been made. Indeed, the court did charge, as requested by the defendant’s counsel in the next proposition submitted by him, “ that the fact that Annie Walters was corroborated in the situation and the condition, and the things that were found in the room of Dr. Patterson, was no evidence of corroboration, with reference to the offense charged against Vedder.”
This instruction was in fact given.
In my opinion the conviction and judgment should be affirmed.
Landon, J.The trial court instructed the jury that the female upon whom the abortion was performed, and who was the only witness against the defendant as to his commission of the offence “ cannot be indicted with the defendant for the offense charged in the indictment, and is not, under the statute, technically an accomplice.”
This instruction was authorized by Dunn v. People, 29 N. Y. 527. The 294th section of the Penal Code, under which the prisoner was indicted, and the 295th section, under which the female who submitted to the operation might have been indicted, are not, in any matters material to the question now presented, different from the second and third sections of chapter 260, Laws of 1845. Then, as now, the person who advised and the female who consented to the abortion were indictable; each one for his or her separate statutory offense.
*30The learned judge, in other parts of his charge, stated the law accurately and fairly with respect to the corroboration of the prosecutrix. He said : “ Though she is not technically an accomplice, she is liable to an indictment for an offense growing out of the same transaction.
“ She stands, in her relation to the offense, very much in the nature of an accomplice, and therefore, her evidence should be scrutinized and received with care, and should be corroborated upon material facts relating to the guilt of the defendant. Still, there is no such inflexible rule,” i. e., that she should be corroborated. “ Her statements should be received with caution, and the defendant should not be convicted, and it would not be safe to-convict, upon the uncorroborated testimony of a person equally liable to punishment with the defendant. But, after all, if her testimony carries conviction to your minds and you are fully convinced of its truth, you should give full effect to it.”
Such has long been the language of the courts. Dunn v. People, supra ; People v. Costello, 1 Denio, 83 ; Fraser v. People, 54 Barb. 306 ; Commonwealth v. Wood, 11 Gray, 85.
Corroboration in a case of this kind is not a condition precedent to conviction, but a prudent caution will seek for greater safety in finding corroboration, and such corroboration will be in matters connecting the defendant with the offense.
We have examined the alleged grounds of error assigned by the defendant’s counsel, and find none, unless in the following particular : The defendant was not present when the operation resulting in the abortion was performed. He offered no testimony tending to show that it was not performed. His position was, that he had nothing to do with it; neither advised nor caused it. There was no direct testimony that he had advised it, except that of the female who submitted to the operation $ she testified that she submitted to it upon his advice and procurement. Discredited as she was by the transaction itself, it became important for the people to satisfy the jury that her testimony was true. Hot that such testimony would be necessary to support a conviction, but to procure it. She testified that the operation was performed by one Dr. Patterson, at his *31.office, by the use of an instrument. A police officer testified, under objection by the defendant, that upon search of Dr. Patterson’s office, about a month after the alleged operation, he found certain instruments. These were produced in evidence by the people, the defendant’s objection that the evidence did not tend to connect him with the offense being overruled.
The defendant’s counsel requested the court to charge the jury, that the finding of the tools in Patterson’s office was not any evidence in corroboration of Annie Walters on the question of committing an abortion, as against the defendant Tedder. The court declined so to charge, and stated that he would leave that with the jury.
The jury were thus left to infer that they might consider this testimony to connect Tedder with the offense, or what was probably in the mind of the judge, that the jury were at liberty, if they found she told the truth about Patterson, to find that she also told it about Tedder.
That the evidence tended to corroborate her testimony that an operation had been performed upon her by Patterson, might have rendered it competent, if it had been so restricted. Commonwealth v. Brown, 121 Mass. 69. But it did not tend to connect Tedder with the crime, and in no respect touched him. To make it touch Tedder, it must be assumed that he counseled the operation which these instruments were used to perform, the essential fact sought to be proven.
To allow the jury to believe that Tedder advised the use of the instrument because an instrument is produced, verges upon the whimsical; the court had no such purpose, but it is not clear that the jury did not so reason. And to assume that she told the truth about matters touching Tedder, because she told the truth about matters which did not touch him, is a method so specious and dangerous as to have frequently fallen under the condemnation of the courts. Fraser v. People, 54 Barb. 306 ; Commonwealth v. Bosworth, 22 Pick. 397; Rex v. Webb, 6 Carr. & P. 595.
We cannot know in what manner the jury regarded this testimony. It did not affect Tedder, and he was entitled to the charge requested.
*32The refusal of the court to charge as requested, entitles the defendant to a new trial.
Judgment and conviction affirmed.