concurring in result.
I am convinced that the same rationale which requires that the testimony of an accomplice be corroborated in order to convict should apply in this instance. As this Court observed over ninety years ago:
“One who is on trial for his life should be allowed great latitude in the cross-examination of the witness who, by his own confession, can have no hope of escaping the death punishment save through the indulgence of those who, under the law, have his life in their hands. An accomplice, in such a case, in implicating another with him in guilt, is under the influence of the most powerful motive that can shape human conduct. For this reason the law looks with such distrust on his testimony that, as a general rule, it will not suffer another to be conyicted on his evidence, in the absence of corroboration. True, the principle has often been stated that one may be convicted on the uncorroborated testimony of an accomplice. But this principle has been regarded with such disfavor that, even in the absence of a statute, courts have generally cautioned juries against convicting where the story of the accomplice stood unsupported by other evidence. Sometimes they have advised the jury to acquit, and in some instances they have directed an acquittal. After conviction, new trials have been granted because the accomplice was uncorroborated. The practice has not been uniform, but the whole trend of it shows unmistakably that the law regards the testimony of the accomplice with distrust.” State v. Kent, 4 N.D. 577, 62 N.W. 631, 638 (1895).
In this instance, Stoner would have a similar motive for her testimony, i.e., if Kelley were to be convicted she would not be tried for homicide.1 In oral argument, the State acknowledged that the determination to prosecute Kelley, rather than Stoner, for the murder was in great part due to the fact they believed Stoner and disbelieved Kelley. It is apparent that the trial *734judge gave considerable thought to this issue because he prepared a proposed instruction which would have required corroboration. Although the precise instruction, including the definition of an accomplice, might not have been appropriate, I believe a somewhat similar instruction that would have required corroboration should have been given when requested by defense counsel. Kelley may not have defended on the “common-plan” theory which would have placed Stoner in the position of an accomplice, State v. Thorson, 264 N.W.2d 441 (N.D.1978), but, contrary to the majority, I believe the facts of this case make that theory most plausible. The State determined not to prosecute Stoner, either alone or as an accomplice, and Stoner may not have been an accomplice, if her story is believed, but under the facts of this case her testimony must be looked upon with mistrust.
I, nevertheless, concur in the result reached by the majority opinion. There can be no doubt that all the participants in the trial, including the jury, were well aware that the outcome of the trial would depend upon whether the jury believed Stoner or Kelley. The jury was properly instructed as to its obligation to determine whom of the witnesses it would believe, and, if the jury chose to believe Stoner because she was a more credible witness, there was, as the majority opinion observes, “sufficient corroborative evidence that tends to connect Kelley with the commission of the crime.” The majority opinion lists that evidence, and I will not repeat it here. Therefore, I agree that the failure to give an instruction on corroboration is, under the facts of this case, harmless error. Rule 52(a), NDRCrimP.
GIERKE, MESHKE and LEVINE, JJ., concur.. The State originally charged Stoner with being an accomplice to murder in violation of NDCC § 12.1-03-01. Both Kelley and Stoner waived preliminary hearing and pleaded not guilty to the crimes with which they were charged. Subsequently, the State dismissed the charge of ac*734complice to murder against Stoner and she pleaded guilty to the crime of hindering law enforcement, in violation of NDCC § 12.1-08-03. That scenario clearly revealed that the State believed Stoner's testimony as to what happened when Chasing Hawk was murdered.