dissenting:
I can not divest myself of the conviction that the verdict and judgment in this case are both wrong. Without questioning that the uncorroborated testimony of an accomplice in crime may in some cases be sufficient to convict, I deem it a very unsafe and dangerous precedent to sustain a conviction resting upon the testimony of such a witness, who shows himself so deeply steeped in crime, whose story, in many of its phases, is so improbable upon its face, and where he is directly contradicted in the vital parts of his testimony by the testimony of at least two witnesses against whose character or credibility nothing appears, and where such powerful motives to induce the accomplice to speak falsely are apparent from the nature of the case.
Freeman testifies to a previous arrangement with Friedberg that he would receive these goods when stolen. He says this was done openly, in presence and hearing of Friedberg’s wife, and in the presence of Harvey, a man he had never seen or heard of before. In this he is flatly contradicted by Harvey, who is shown to be a respectable and industrious mechanic, and by this record stands unblemished, save by the testimony of this same man, by his own confession a professional thief.
The story of Freeman as to what occurred at this time, so far as relates to the lending of a revolver, is proven false by the witness Levi, who stands unimpeached upon this record. Freeman testifies that the accused did consent to receive, and did willingly receive, the goods on the night of the 4th of October, which is the offence charged in this case. Eight here is the gist of the controversy. In this he is flatly contradicted by the oath of the prisoner, and by the testimony of Harvey, who was present, and by that of Harvey’s wife,' and by circumstances sworn to by the witness Weiser. The theory of Freeman’s story is, that Friedberg and his wife were cooperating in what was done, and the statement that the Friedbergs were consenting to take the custody of the goods in question is shown to be false by the testimony of William Weiser, who stands unimpeached, and which shows that so far from receiving the goods, Friedberg (before the presence of any officer was apprehended) ordered Freeman, who was bringing'the goods into-his store, “to take the goods out, ” and that to enforce the demand that the goods should be taken away, Mrs. Friedberg sent the witness hastily for an officer, saying, “go as quick as you can;” that the witness went immediately and found officer Race; that Race at once started for the store; that Mrs. Friedberg, who had meanwhile followed witness when he went for the officer, met officer Race on his way to the scene and spoke to him, and Race hastened to the store door, and was there instantly shot and killed. This killing was plainly done either by Freeman in person, or some one of his fellows who were seeking to place the goods in Friedberg’s store. There is absolutely no evidence tending to sustain the charge that Friedberg received these goods, or took the custody of them, except that of Freeman.
It is suggested that the fact that these goods were brought at so late an hour should have indicated to Friedberg that they were probably stolen. This may be so; but it must be remembered that the testimony is that at first Freeman came alone, and simply said he had some silk handkerchiefs he wanted to sell, and Friedberg consented merely to look at them. The surroundings were so suspicious that Harvey advised Friedberg to have nothing to do with them, and Friedberg, having his suspicions aroused, replied, it “could do no harm to look at them, ” and that “he did not intend to buy. ” When the man returned, not merely with some handkerchiefs, but with a wagon and large quantity of other goods, and began to bring them in, Friedberg protested and forbid. All this is well shown by testimony apparently credible, and is nowhere contradicted, save by Freeman’s very improbable story.
It is suggested the testimony of the girls, Ida Morrison and Belle McCabe, corroborates Freeman, wherein they say that a day or two before this occurrence they were at Friedberg’s store looking at some silks, with, a view of buying, and said they were not such as they wanted, and that Friedberg requested them to call again soon, as he expected to have other and better silks in a day or so. Saying nothing about the apparent character of these girls, and taking this as honest testimony, it seems to me a matter of no significance. A man keeping a store and pawn-shop, or an auction store, in a large city, is daily receiving goods of almost every character, and is liable to have such goods any day from legitimate sources, in the ordinary course of business. It seems nothing more than the usual request of dealers to customers to call again, with the not unusual suggestion that they may shortly have such articles as are called for. It was a casual remark, and the lightest kind of testimony. It can not be said to be a substantial corroboration of Freeman.
Freeman’s motive to swear falsely against the Friedbergs is palpable. It appears from the affidavits in support of the motion for a new trial, that on the trial of Lamb for the murder of Race (where Freeman testified against Lamb), Mrs. Friedberg was a witness, and testified that it was Freeman who shot Race. Freeman, in this controversy, is testifying to save his own life, and to destroy the standing of those who aver his own guilt. He is not merely an uncorroborated accomplice, but he is, by his own account, a professional thief and burglar, steeped in crime, swearing under strong motives to speak falsely, and contradicted by several unimpeached witnesses. The good of society does not, in my judgment, demand that any man shall be convicted of crime upon such proof, only.
Mr. Justice Walker :I concur with my brother Dickey in his dissenting opinion.