*491Concurring Opinion.
Miller, J.One proposition presented by this appeal impressed one at the time of the oral argument as of importance greater than ■that of any other question discussed. The conviction was on testimony in part derived from book entries, admissible, it was claimed, to confirm a witness who had testified to the guilt of the accused. The offence, according to the testimony, had been committed on the '7th, and the entries, directed by the witness, made on the 15th No-wember. The entries carried no significance whatever touching the accused. They were debits in the books of money paid for apparently legitimate purposes. Their tendency' to corroborate the witness who had criminated the accused was not readily appreciable if •corroboration implies anything confirmatory of the testimony of the witness in respect to the material issue, the guilt of the party •charged by the accusing witness and convicted on his testimony. IE not admissible as corroborating the witness on the issues, for which purpose only, in my appreciation, the entries were offered, then the .conclusion seems inevitable, the conviction was on illegal evidence -carrying the necessary result in criminal cases. It would be, as it •impressed my mind, difficult to sustain a verdict on testimony brought forward to serve one purpose for which it was not competent, but none the less contributed to obtain a verdict from the jury against the accused. If the evidence was not admissible as corroboration in .any legal sense, then the conviction had been secured on these entries not made by the accused, nor to which he was in any way a party, but by the witness, and by his direction, placed in the books seven days after the offence is stated to have been completed, and .all connections of the accused with the accomplice had ceased.
It could hardly be claimed, nor is it appreciated to be urged, that these entries could be deemed part of the res gestas. Acts and conduct accompanying the particular fact under investigation are considered as illustrating its character. Such acts and conduct arise out of the event, admit of no premeditation and carry the sanctity due to them as concomitants of the event itself. There were, as is gathered from the bills, two interviews, perhaps more, of tbe accused with the witness. The last was begun and ended on the 7th November with tbe bribe then, as the witness testifies; given by him .to the accused. It was seven days after the witness gave to his *492book-keeper the directions under which the entries were made. It is too manifest to need the least discussion the entries formed no part of the res gestee. 1 Greenleaf on Evidence, Secs. 108, 110.
The State contended for the admissibility of these entries as tending to confirm the witness. He had testified to bribing the accused on the 7th November. It is claimed and conceded in the argument that'the defence had afterward assailed the character of the witness for truth by attributing to him a design to misrepresent, and had avowed the purpose to discredit him. The entries offered on the direct examination had been excluded, but with the basis claimed to have been afterwards furnished they were again offered and received over the objection of the defence. It was an attempt to sustain the statements of the accomplice as a witness by his book entries. The rule relied on by the State is, that when the character of a witness is- assailed on cross-examination the party calling him may support the testimony by proof of statements by the witness on other occasions. Greenleaf thus states it: Statements by the witness similar to what he has testified in the cause are not admissible, unless a design to misrepresent is charged on the witness in consequence of his relation to the party or to the cause, in which case it seems it may be proper to show he made a similar statement before that relation existed. 1 Greenleaf, Sec. 469. The rule varied in form is again stated thus: “Prior similar statements may be given in evidence made before any improper motive could have actuated the witness; in general, however, prior consistent statements can not be admitted.” Best’s Principles of Evidence (Ed. 1883), 633, notes. The other text writers and a long array of adjudications state the rule substantially the same. Admissibility of such statements is the exception ; prohibition is the rule. The guarded terms in which the rule is couched announce the limitations as to the time and the relations of the witness subsisting when the statement is made. These entries were made seven days after the bribe was given. It is not understood that the argument for the defence against the admissibility of the evidence is based on the specific ground of the time of the entries, but controverts its admissibility on any grounds.
The circumstances under which the State claims the admissibility of the entries are these: The witness had testified to bribing the accused on the 7th of November by giving him five hundred dollars. The defence had afterward assailed the witness’ character, and with *493the basis furnished by this attack on his character the State offered the entries to support his veracity. The defence seems to concede the basis existed for supporting testimony, but contend the entries offered for that purpose were forbidden by a well settled rule of evidence. Whatever the scope of the rule, permitting proof of similar statements by the assailed witness, it can not be claimed that under the guise of supporting testimony illegal evidence can be put before the jury to affect the accused.
The act under which the defendant is indicted makes the giver as well as the receiver of the bribe participants in the offence. We must deal with the witness as in the position the law puts him. It is settled the jury may convict on the testimony of an accomplice. Where, however, the State, unwilling to rest on his testimony, seeks to confirm it, in my view an important rule of evidence, different from that relied on by the State, is called into operation. In the argument for the State this is called a rule of practice. However called, it is founded on experience of this species of testimony and requires, if such corroboration is attempted, it shall be something more than testimony as to the acts or conduct of the accomplice to be supported. The confirmatory proof must relate to the guilt of the accused. The accomplice has already testified to his own conduct. To be confirmed, reason would suggest that the corroboration must refer to the guilt of the accused. Corroboration of the acts of the accomplice is not in any sense corroboration of the crime of the party charged. Mr. Greenleaf states there is some disagreement as to the nature and extent of the corroboration required, some have deemed it sufficient if the accomplice is confirmed in any material part of the case; others have required evidence of the corpus delicti only, and yet others who thought it essential there should be corroborating proof that the prisoner participated in the offence, and when several are tried the confirmation is required as to all; the confirmation of the witness, the text adds, is no confirmation at all, as it respects the prisoner. It is manifest the proof offered here solely as corroboratory testimony meets no test prescribed by Greenleaf. He cites approvingly the rule of the Supreme Court of Massachusetts, that the confirmatory testimony must relate to a material part of the case. The decisions of that court have always been of high repute. The earlier decision was given when its Chief Justice was a great jurist and the associates stood high in the appreciation of bench *494and bar. The later decision was pronounced by Justice Gray, now of the Supreme Court of the United States. State vs. Holmes, 127 Mass. Rep. 424.
These decisions carry not only their intrinsic force, but have been adopted as the expositions of the law by Greenleaf, the leading text-book on this branch of the law, as well as by the later writers. Rice on Evidence. The Massachusetts case puts the question : what is eorroberation, and answers it. It must relate to the guilt of the accused. To prove the accomplice has told the truth as to irrelevant and immaterial matters known to everybody would have no tendency to confirm his testimony involving the guilt of the party on trial. If this were the case every witness could always furnish materials for the corroboration of his own testimony. If he could state “ where he was born,” and the decision goes on to enumerate other unimportant points, he might easily get confirmation of all these particulars. But these circumstances having no necessary connection with the guilt of the accused, proof of the correctness of the statements in respect to them would not conduce to prove the statement of the guilt of the defendant. There is no substantial difference developed by the authorities on the principle so well stated by the Massachusetts court. The decision in the first case was years ago, and in the later decision, Justice Gray being the organ, the rule as to the corroborative testimony of an accomplice was affirmed in the strongest language, as laid down in the earlier case. The adjudications of other courts, notably of Pennsylvania and Georgia, are to the same effect. In the last case of the Massachusetts court the prisoner, indicted for arson, was convicted on the testimony of an accomplice. He was confirmed in various particulars of his conduct to which he had testified on the stand. Thus he had testified that on the night of the crime he had walked around town, gone to a lecture, met with companions, leaving them, had approached the barn, and saw the accused with burning straw in hi.s hands who admitted he had fired the barn; that he then went away, reached his father’s home about midnight and went to bed. The witness further testified that later the accused gave him some bank bills as he had promised. The accomplice was confirmed by the testimony of others on all the points of his testimony, except as to the material issue, the guilt of the prisoner — that to say, by other testimony he was confirmed in his statements as *495to his walk, his visit to the lecture room, the company he met, the ■ time he went to bed and finally that he had been seen with bills in his hands, like those to which he testified. It will be perceived that, none of the corroborating testimony touched the guilt of the prisoner. ' All was admitted over the objection of the defence. The parallel between that and the instant ease is obvious. Here, the corroborating testimony relates only to the conduct of the accomplice. It confirms him in these particulars to which he testified, that he gave directions to his book-keeper to enter on the books the amount of the bribe, and the entries were made. The corroboration does not,, in the faintest degree, bear on the guilt of the accused. In the Massachusetts case, decided by Justice Gray, the proof was deemed inadmissible as irrelevant and incompetent, the court holding that no evidence can be legally admitted as competent for corroboration of the accomplice that does not confirm the testimony on a point material to the issue in the sense it tends to prove the guilt of the accused. As we appreciate the argument of' the State on this point, the reliance is solely on the right, of the party calling the witness to support his credit, by proof of similar statements on other occasions, and hence the State cites Roseoe, Starkie .and,a large array of decisions. There is-no controversy here as to the right to sustain a witness by proof of similar statements in those cases where the rule applies. Nor is there any contention that a basis for such supporting testimony is afforded by questions on cross-examination, or other modes denoting the purpose to discredit the witness. To this supposed contention, much of the argument of the State has been directed. The real, issue is, whether any corroborative testimony is competent to sustain an accomplice that does not confirm his testimony as to the guilt of the prisoner. It is the question as to the corroboration required in the case of the accomplice we have to deal with here, and not the other issue to which the argument and authorities of the State have been largely directed — i. e., the general rule that an assailed witness may be supported by proof of his similar statements, on other occasions. It is stated in the bills that the entries are offered for corroboration, not of the facts that fix guilt on the accused, but to confirm the witness’ narrative as far as possible, and.to sustain his veracity. The only tendency of the entries is to show the accomplice told the truth in respect to directing the entries, and' *496that they were made. To that extent they sustain his veracity and mo further. It is conceded they have not the remotest tendency to fix the guilt of the accused. If Justice Gray’s exposition of the law is correct, surely the evidence falls within the prohibition he so clearly announces. He was dealing with corroborating testimony as to facts stated by the witness, not pertaining to the guilt of the ■prisoner. Here the court is dealing wiith corroboratory evidence of facts testified to by the witness but not bearing on the guilt of the ■accused. Justice Gray held that no such testimony could be admitted to corroborate an accomplice. It was incompetent and irrelevant, in his view, unless it tended to prove the guilt of the accused. It must appear that to hold these éntries competent evidence, we must determine that the construction of the law by these two decisions of the highest court of Massachusetts is erroneous; there must also be denied to the text writers the authority accustomed to be paid to them. At an early period our Legislature declared that the forms of proceeding and rules of evidence in criminal cases should 'be according to the common law. For more than ninety years our courts have been guided by that system, and the judicial expositions ■of its principles and of its rules of evidence in criminal cases. See act of 1805, now Sec. 976, R. S.; State vs. McCoy, 8 Rob. 545; State vs. Lacombe, 12 An. 195. A rule of evidence in criminal proceedings observed in the common law courts, that testimony offered to support an accomplice is not competent, that confirms only as to facts not touching the guilt of the prisoner, is commended by a force of reason and authority that the legal mind finds difficult to resist.
The sequence of the introduction of improper evidence against the accused is apparent. The testimony offered to corroborate proving nothing in respect to the guilt of the accused, advances in no respect the solution of the issue of guilt. Under the guise of corroboration it serves to put before the jury incompetent evidence to affect the prisoner. That effect was the precise question determined in the Massachusetts cases, thus stated in the clearest language by the learned judge in the last case. Determining that no evidence can be admitted as competent for corroboration that does not tend to prove the guilt of the accused, the result is as he states it, that if any evidence is admitted by way of corroborating the accomplice, so as to make it safe for the jury to convict, which is not legally entitled to that effect, it is a subject of exception and a *497ground for a new trial. That must be the result here or the rule of law disregarded.
The admission of illegal evidence in a civil case is comparatively unimportant. The judge disregards the incompetent evidence, and the judgment is based on that which is legal. But in a criminal case the judge has no such function. It is for the jury to convict, and is presumed to act on all the evidence submitted. It is impossible to determine what influence has been exerted on their .minds by illegal evidence, and it is the right of the accused to be tried on legal evidence alone. If that right has been invaded there has not been the fair trial guaranteed to all by the Oonstitution and laws. Hence this court is powerless to accept any suggestion, even if it were made, that without the improper evidence there was enough to convict. To this effect is the uniform current of all authority well epitomized thus: The admission of illegal evidence can. not be disregarded on the ground that the other evidence in the cause was sufficient to convict. The conviction must be by legal evidence only. And again thus: The court can not look into the whole case to determine whether or not there is other testimony sufficient to establish the defendants guilt. To do so would be, in effect, to set aside the verdict of the jury, and to form conclusions for ourselves from the evidence. The defendant is entitled to the verdict of a jury upon competent testimony alone.
The rules of evidence are for all time and for all men. They tend to secure the conviction and punishment of the guilty. They have the no less important function of guarding the rights of the innocent who may be accused of crime. It is bad if the guilty sometimes escape. It would be worse if criminal trials were conducted without regard to those rules the wisdom of the law has provided for the guidance of courts.
The new trial being inevitable, it is proper to state that, in my opinion, the act of 1890 is applicable to the offence charged. The accused can be tried again on that indictment, and this opinion simply indicates the illegal evidence to be excluded.
I concur in the decree.