The opinion of the court was delivered by
Steele, J.I. The respondents are husband and wife. They are charged in the indictment with knowingly having in their possession certain burglarious implements, with intent to use them feloniously. Whatever possession the wife had while her husband was with her was prima facie innocent, as under the coercion of her husband. The respondents claimed more than this, and asked the court to instruct the jury that, if her possession was by direction of her. husband, it would be prima facie innocent. This part of the request was unsound ; and no error, therefore, lies for the refusal of the court to charge as requested in this respect. But the court did charge, to use the language of the exceptions, that ££ the undisputed facts in this case showed that the respondent Adelia’s connection with the transaction was during the absence of her husband, when she was free from his immediate influence and control, and if the jury found that she had the keys in her possession, and was carrying out the common intent as aforesaid, she was then legally responsible,' and they might render a verdict of guilty as to her.” This implies that she is not legally responsible except for what she did in her husband’s absence, and we think was understood by the court and the jury as limiting the guilt to such acts and possession as were done and had in the evening after the husband’s departure in the morning *504for Canada. The charge was, therefore, correct on this branch of the case, for very clearly the wife was responsible for her possession during the husband’s absence ; and the fact that such possession was by the command of her husband, given before he left, would raise no presumption in her favor.
II. But was the wife’s possession, during her husband’s absence and on the occasion of the burglary, the joint possession of the husband and the wife ? Unless it was, this joint conviction of ' both respondents was erroneous as to one. A joint conviction could not be supported by proof fixing the guilt upon one respondent at one point of time, and on the other at another point of time. The possession, to have been joint, must have been simultaneous. If, in this case, the wife is held, the husband must be released, unless the wife’s actual possession of the implements, on the evening of the burglary, was in the sense of the law his possession also. It is clear that her use of them on this occasion was not, in the sense of the criminal law, his use of them. For her use would make her guilty of a burglary, while the fact that this use was by direction or procurement of the husband would make him guilty, not of the burglary, but of being accessory to it. The court, however, held that her possession, in her husband’s absence, might be the possession of the husband, and in this there is error, unless, in the nature of things, the general rule of law, which requires the presence of a party in order to constitute him guilty of the actual performance or execution of a criminal act, is inapplicable to a case in which the crime consists in having an unlawful possession. The court told the jury that if they found “ that the keys were procured by the respondent Charles, for the purpose of committing a burglary, and with the knowledge of said Adelia, and he, with the respondent Adelia, planned the burglary itself, in the commission of which the keys were to be used, and that he passed the keys to her for that purpose, and she kept them, and attempted to use the same in carrying out such purpose, even though they should find that the burglary was committed by her in his absence, both the respondents were equally and jointly guilty of the crime charged.” This, when taken with the other portions of the charge which have been referred to, amounts *505to a ruling that the wife’s possession of the tools, on the occasion of the burglary, if pursuant to a scheme concerted between her and her husband while the tools were in his actual possession, was in law the joint possession of herself and her absent husband. The expression of the statute, “ have in possession,” is perhaps somewhat vague. It cannot be limited to manual touch or personal custody. Under a similar statute against having counterfeit coin in possession, although there was in the statute an interpretative clause which seemed to limit the possession to personal custody, still the majority of the judges held, in a case where two were together, and one had the actual possession for the benefit of both, that the possession was joint. Roger’s case, cited in Roscoe’s Or. Ev., 397. So if a person deposits the unlawful implements in a place of concealment, either upon his own premises or elsewhere, he would doubtless have them in his possession even though absent from the place he was using for their concealment. In this case the jury have found that the keys were passed by ’ the husband to the wife to perfect their guilty design. Under such a custody by the wife for herself and her husband, and by direction of the husband, the implements were not less in the husband’s possession than they would have been if they had remained in his place of concealment without being imparted to the care and use of the wife at all. If the husband with the guilty intent had left them concealed on his premises without communicating the fact of their existence to his wife, he would have been guilty of continuing his unlawful possession during his absence. In what respect was the case altered by his taking his wife into his confidence, not in order to abandon his possession, but in order the more securely and effectually to hold and continue it by making her the partner of his crime ? We see no error m the ruling that the wife’s possession in the absence of her husband may have been the joint possession of the husband and the wife.
III. The court declined to advise or caution the jury that the wife, unless there was evidence other than that of the accomplice tending to prove her connection with the crime, should be acquitted ; but on the contrary, substantially told the jury that they might convict both prisoners on the evidence of;the accomplice, if *506it was corroborated in important particulars as to one, and commended itself to their credit as true beyond a reasonable doubt as to both. We think the better practice is to advise the jury to convict no prisoner unless there is some proof, other than the testimony of an accomplice, tending to show that prisoner to have had a guilty connection with the commission of the crime. This, we understand, is generally, though by no means universally, recognized as the true rule of practice. But it is only a rule of practice, and not a rule of law. The jury are the final judges of the weight of testimony, whether from accomplices or others, and it is no error of law for the court to neglect or refuse to express an opinion to the jury as to what facts they should find or not find upon the proof. The fact, that the evidence w*as from an accomplice, tends in law to discredit it, and the jury were fully informed of that fact. Being so informed, and it being peculiarly within their province to determine what weight to give it, the court was not bound to advise them as to their conclusions. It has seldom, if ever, been held that the respondent could as a matter of law claim from the court instructions or advice to the jury to acquit him by reason of a lack of credibility in the witness against him, even though that witness is an accomplice. Though we do not approve the neglect of the court to give the customary caution in this case, we can not treat it as legal error. A conviction, in which the charge was open to precisely the same criticism as this was, in a recent English case, decided in 1855, sustained by the unanimous judgment of the court, Jervis, C. J., Parke B. Wigi-itman, J., Cressayell, J., and Willes, J., giving opinions seriatim, in which they hold that this is but a matter of practice, in respect to which no question can be reserved, although as a matter of practice three of the justices state that under such circumstances it is Avise to advise the jury to acquit. Regina v. Stubbs, Bennett & Heard’s Lead. Cr. Ca., 545 (from 33 Eng. L. & Eq., 551.) This disposes of all that portion of the reserved-case out of which, so far as we can see, any question can be raised.
The result is, the respondents take nothing by their exceptions, and judgment of guilty is rendered upon verdict.