State v. Mathews

DISSENTING OPINION.

Sherwood, J.

— For the reasons stated under the first head in my dissenting opinion in the case of State v. William Walker, ante, p. 95, I dissent in this case.

Nor can I otherwise concur in the majority opinion for the following additional reasons : In the majority opinion, it is stated that “the instructions given in this case are substantially the same as those given in the case of State v. William Walker.” I do not concur in this statement, as a comparison of the instructions in these cases will show that such statement is unfounded. For instance: In the William Walker case, the instructions defined deliberation and then submitted to the jury the question whether or not deliberation existed under a proper instruction; in this case the jury were told that “there is no evidence in this case to show that defendant acted under the influence of such violent passion aroused by any cause or provocation.” This assumes that the defendant did act, the very point in issue.

Again, in the William Walker case, the jury were instructed “that in considering the testimony of accomplices against defendant, you should consider and examine it with great caution and scrutiny, and the testimony of such witnesses should not be sufficient to warrant a conviction in a case of murder unless the same is corroborated by other witnesses as to facts and circumstances tending to prove the defendant guilty.” In this case the jury were told that “while the testimony of accomplices * * * is admissible on behalf of the state, yet the evidence of such accomplices * * * unless corroborated * * * ought to be considered *125by you with great caution and scrutiny. And you ought to be fully satisfied of its truth before you should convict * * % on such testimony uncorroborated * * * 55

Two instructions could not be drawn more contradictory. In the Walker case, the jury are told not to convict'on the uncorroborated testimony of accomplices. In this case they are clearly authorized by the instruction under consideration to convict without such corroboration. I cannot subscribe to such doctrine, because it is not supported by principle or by authority, and I still adhere to the opinion I expressed in State v. Chyo Chiagk, 92 Mo. 417, that the jury should be flatly instructed not to convict the accused on the uncorroborated testimony of an accomplice. Por authorities in support of this position, see cases cited in that case.