In Commonwealth v. Desmond, 5 Gray, 80, which is relied upon by the defendant, it was assumed and argued by the prosecuting officer, that the witness was an accomplice in the crime which was the subject matter of the indictment. It was held by this court that, in so doing, the prosecution admitted the fact for the purposes of the trial, and that this admission was conclusive and binding upon the Commonwealth. It was therefore decided to be an error on the part of the presiding judge, in his charge to the jury, to treat such complicity as an open and controverted question of fact, in relation to which they were at liberty to find either way.
But in the case before us there was no such conclusive admission. The report finds that both parties argued the case to the jury on the ground that the witness was an accomplice. The defendant’s counsel argued, that, for that reason, he was not entitled to credit. And the counsel for the prosecution may have argued that, even if he were an accomplice, he was so corroborated as to be entitled to belief. It does not appear, and in the case of an excepting party stating his own objection we are not at liberty to presume that the concession on the part of the prosecution went any farther than this. In such a mode of presenting the case, it may well be said that both parties argued “ on the ground that the witness was an accomplice.”
In this state of things, it was proper for the presiding judge to instruct the jury as to the nature of the facts and circum stances that would furnish corroboration of testimony obtained from an accomplice, and the instructions which he gave on that *107subject were correct. In order that the jury might judge whether the rule so given applied to the case, it was proper that they should first consider and decide whether the witness was in fact an accomplice. The defendant’s exception applies, not to the manner in which this question was submitted to the jury, but to its submission to them in any form; an exception which, as the case then stood, cannot be maintained.
The fact that the witness was seen in company with the defendant, at a late hour of the night in which the crime was committed, near the place, and in the act of going towards it, had a tendency to corroborate his testimony.
Exceptions overruled.