(dissenting).
We dissent.
The defendant Harmon was informed against and charged with a serious crime. His liberty is in the balance. He, like any other person, has the safeguards of our Constitution and our statutes to protect him in the same manner as any other person. His liberty may not lawfully be taken away without due process of law.
The majority opinion quoting the Chamock case recognizes the hazard that an innocent man may be convicted by an accomplice who “would by swearing against me take away my life to save his own.” This principle the majority lays aside, and then proceeds to affirm the conviction of this defendant upon the uncorroborated testimony of a self-confessed accom*240plice. By so doing the majority has stripped this defendant of the protection afforded him by law.
R.C.M. 1947, section 94-7220, provides:
“A conviction cannot be had on the testimony of an accomplice, unless he is corroborated by other evidence, which in itself, and without the aid of the testimony of the accomplice, tends to connect the defendant with the commission of the offense; and the corroboration is not sufficient, if it merely shows the commission of the offense, or the circumstances thereof. ’ ’ Emphasis supplied.
The court has applied and construed section 94-7220, supra, in the various decisions which appear in the majority opinion. We have no quarrel with most of the general statements of law found therein. We concede that Carter was an accomplice as well as a principal, and it is for this reason that the provisions of section 94-7220 have application here. We cannot concur in the majority opinion for the reason that it fails to apply and give effect to the salutary provisions of section 94-7220.
In State v. Geddes, 22 Mont. 68, 83, 55 Pac. 919, 924, Justice Hunt said: “* * # where convictions were asked for upon an accomplice’s testimony, it is settled in this state by the statute quoted [now section 94-7220], that the corroboration must be evidence from an independent source, and it must be such that this independent evidence, in itself, without considering the testimony of the accomplice at all, tends to connect the defendant with the commission of the crime charged. Furthermore, it is not a satisfaction of the statute to corroborate an accomplice upon immaterial matters, or to prove merely that the crime charged has been committed, or the circumstances under which it has been committed; for there may be all such proof, and yet the additional essential evidence be lacking, which independently of the evidence of the accomplice, leads to the inference that the defendant is connected in a criminal way with the commission of the crime.” Emphasis supplied.
This statement of the applicable law was reestablished by *241Chief Justice Brantly in State v. Spotted Hawk, 22 Mont. 33, 55 Pac. 1026, wherein it was sought to corroborate Whirlwind’s confession, implicating Spotted Hawk, by the testimony of Shoulder Blade. Such testimony was held not to be corroborative.
This same principle was reiterated by the court again in State v. Welch, 22 Mont. 92, 55 Pac. 927. The command of the statute is that the corroborating testimony must be viewed as if no testimony at all had been given by the accomplice. The other independent testimony must then be examined to see if it tends to connect the defendant with the commission of the offense. No reliance can be placed upon the testimony of the accomplice. We repeat here what was said in the above case. We have diligently searched the record in vain for evidence other than that given by the accomplice to connect the defendant with this crime of burglary and it is our carefully weighed opinion that there was no competent evidence whatever upon which to base a conviction.
The district court in this case set out the correct rule to be followed in clear and unmistakable language in its Instruction No. 18, wherein it was said:
“You are instructed that in determining whether or not the testimony of an accomplice has been corroborated as required by law, you must assume to be removed from the case the testimony of the accomplice, and then examine all other evidence with a view of determining if there be any inculpatory evidence, that is, tending to connect the defendant with the commission of the offense charged. If such other evidence does do that, then the testimony of the accomplice is corroborated. If it does not, then there is no corroboration, although the accomplice may be corroborated in regard to any number of facts sworn to by him.”
This instruction the jury ignored. This instruction the majority opinion overlooks.
In reviewing this matter on appeal it is this court’s duty to review the evidence presented by the State to see if the testi*242mony of the accomplice Carter was corroborated by independent testimony tending to connect defendant, Tom Harmon, with the commission of the offense charged. The question as to whether these is such corroboration is one of law for the court. State v. Yegen, 86 Mont. 251, 283 Pac. 210; State v. Jones, 95 Mont. 317, 26 Pac. (2d) 341.
In reading the entire transcript it is obvious that what the State set out to do here was to prove that some time between the hours of 11:30 p.m. and 3:20 a.m., being the late evening hours of the 13th of February and the early morning hours of the 14th of February 1958, Tom Harmon burglarized an apartment located at 209 Colorado Street in the City of Butte, County of Silver Bow, State of Montana.
From testimony by independent witnesses we first find Tom Harmon, at approximately 10:30 p.m. on February 13, sitting in the Oasis Bar on South Main Street in the City of Butte. At that time he was merely sitting at the bar drinking. While there, one Ferns, the victim of the alleged burglary, entered the bar, bought the entire house a drink, or as he expressed it, “timbered,” cashed a check and bought a bottle of wine. After drinking his drink he asked the bartender to call a cab for him. The cab arrived and Ferns left the Oasis. Some time later the defendant, Tom Harmon, also left the Oasis. Ferns testified that while in the Oasis Bar he did not see Mr. Harmon and that he did not know or recognize Mr. Harmon then or at the trial.
We next find Mr. Harmon at about 11:00 o’clock in the evening of February 13th across the street from the Oasis Bar in the Silver Bar in company with a colored man. He stayed in the Silver Dollar from approximately 11:00 to 11:30 that evening. Two witnesses testified that Mr. Harmon was in the Silver Dollar at approximately this time. One witness said Harmon was with a colored man, another witness said that when she saw Harmon in the Silver Dollar he was standing down at the end of the bar by himself drinking a glass of beer.
The second witness testified she left the Silver Dollar Bar *243at 'approximately 12:15 a.m., but was not sure tbat Harmon was still in the bar at that time. From approximately 11:30 p.m. .to 12:15 a.m. that night until 3:20 a.m. in the morning of February 14th the record is absolutely silent as to the whereabouts of Tom Harmon. No competent testimony was introduced at any time as to where Harmon was during that period of time.
At 3:20 a.m. on February 14th, Butte City police officers investigating a prowler report, picked up Tom Harmon on South Colorado Street and took him to jail where they charged him with being drunk. They suspicioned Harmon might have been the prowler, but the complainant was wholly unable to identify the person of whom she had complained. However, from 3:20 a.m. until some time prior to 9:00 a.m., Harmon was held in the city jail in Butte on an intoxication charge.
When defendant was placed in jail he was searched by the police and found to have in his possession a small sum of change, the exact amount whereof could not be remembered by the arresting officers, and also two small bits of celluloid and a toy flashlight. These articles were returned to him when he was released.
Later, on the morning of the 14th, a colored man went into a jewelry shop in uptown Butte and purchased a small lady’s wrist watch and paid for same with two traveler’s cheeks. While buying the watch he conversed with the owner of the jewelry store wherein, according to the latter’s testimony, the colored man made various conflicting statements. This aroused the storekeeper’s suspicion and caused him to write down the license number of the car in which the colored man was riding.
Shortly thereafter this same colored man entered a hat shop in Butte where he purchased two hats and paid for same with a traveler’s check. During the transaction, and while the colored man was countersigning the traveler’s cheek, the shopkeeper testified • his attention was distracted and he failed to examine or even look at . the check until the colored man had left his shop. Thereafter, upon-examining the: check, the shop*244keeper became suspicious that the original signature and the countersignature affixed thereon by the colored man did not match. Whereupon, the shopkeeper reported this fact to the Butte City police. The jeweler from whom the colored man had purchased the lady’s wrist watch also reported his suspicions to the Butte City police. These two reports made to the police at approximately 11:00 a.m., February 14, 1958.
Later that day, the colored man was picked up by the police. With him at the time was the defendant, Tom Harmon. The colored man was found to be in possession of the lady’s wrist watch which he had that day purchased from the jeweler who had so reported to the police his suspicions concerning the traveler’s checks.
Tom Harmon was then wearing one of the hats purchased by the colored man from the shopkeeper. The police sought to ascertain the true owner of the traveler’s checks. They contacted Malcolm L. Ferns whose name appeared on the signature line on the checks. Ferns informed them that upon awakening in the morning he was unable to locate some traveler’s checks and some small change which he thought that he had with him when he went to bed the night before.
It developed that while Harmon was in the Oasis Bar on the evening of February 18 that Ferns entered the bar and “timbered;” that thereafter a part owner of the bar called a taxi for Malcolm Ferns, who upon the arrival of the taxi, was assisted thereto by the driver who proceeded directly to Ferns’ apartment at 209 Colorado Street, where at the entrance Ferns paid the driver his cab fare in the amount of $1 and then entered his apartment and went to bed. When he awakened in the morning, Ferns was unable to locate his book of traveler’s checks or money, whereupon he telephoned the Oasis. He testified:
“A. The first thing, I called the Oasis Bar and asked if by chance if the swamper picked up a cheek book and he said there’s nothing showing on the back bar. Secondly, I called the *245Metals Bank and I told them to stop' the checks, that I lost the check book.”
Ferns testified that he did not report his loss to the police and that he knew nothing whatever as to what had happened to the traveler’s checks until he was contacted by the Butte police and by them informed that George Carter, the colored man, had countersigned and been passing Ferns’ traveler’s checks and that they, the police, had taken Carter, the colored man, into custody and had found in his possession merchandise which he had obtained by the passing of Ferns’ traveler’s checks.
There was one witness in the ease who testified that while she and her sister were walking down the street in the 500 block on South Colorado Street, which is some three blocks distant from Ferns’ apartment, she found one of Malcolm Ferns’ traveler’s checks; that after reading a story in a Butte newspaper concerning Ferns’ traveler’s checks that she delivered the check which she had found to the Butte city police.
Carter, the colored man, who admitted that he had in his possession, and that he had fraudulently countersigned and passed on to various shopkeepers in Butte for merchandise, the traveler’s checks of Malcolm L. Ferns, took the witness stand for the State and there testified against the defendant Harmon. If Carter’s testimony be true, which we seriously doubt, then Carter was, and is, not only an accomplice but also a principal of the first order to the alleged crime of burglary for which the defendant was then on trial. However, under the established law of this jurisdiction, Carter alone could not shift his admitted guilt to the shoulders of Harmon. Carter’s testimony alone was insufficient, under our law, to sustain a conviction until and unless there was also produced some independent testimony that placed Harmon in Ferns’ apartment at the time charged and for the unlawful purpose alleged.
Here, the only evidence in the entire casé to establish that Ferns lost his traveler’s checks and property as the result of *246an alleged burglary is tbe testimony of- Carter, tbe principal and accomplice who wound up- with all but one' of the lost checks in his possession. The testimony of the accomplice Carter alone is all that implicates the defendant Harmon with the alleged burglary of which Harmon now stands convicted.
Ferns did not even know whether or not he had taken all or any of his money with him when the taxi driver escorted him from the Oasis Bar to his home. Ferns did not know where his traveler’s checks were when he' left the Oasis Bar, when he arrived at his home, when he went to bed or when he got up the next morning. When Ferns awoke, on the morning-after his big spree, he was unable to locate his traveler’s checks and, acting- upon the assumption that his checks must have been lost at the Oasis Bar and that they may have been retrieved by the bar’s swamper, he telephoned that establishment.
When once we exclude or delete from the record before us the testimony of the principal and accomplice Carter, there remains not one iota of independent evidence that in any way or manner connects Tom Harmon with the entering of any house or apartment with any intent whatever to commit grand or petit larceny or any other crime.
The majority opinion lists nine separately numbered items which it asserts corroborates the testimony given by the accomplice Carter. An examination of such' items demonstrates the patent error into which the majority has fallen.
First, the majority say “The accused was in the victim’s presence when Ferns ‘timbered’ at the Oasis Bar.” What of it? There were also plenty of others present to partake-of the generous windfall when Ferns “timbered.” As much can be said of each person at the bar when Ferns bought drinks for the house. One witness testified that three or four other people were there, while another testified there were five or six others there when Ferns “popped'”-for'the crowd.' Association or opportunity may make for suspicion, but never for cor*247roboration. It may tend to connect Mr. Harmon witb drinking, bnt certainly not with tbe crime of burglary.
Second, tbe majority say tbat “Tbe accused was in position to learn tbe location of tbe victim’s room from tbe address Ferns gave tbe taxicab driver (assuming tbe accused did not already know it).” There is not a scintilla of evidence in tbe record tbat Malcolm Ferns gave tbe taxicab driver bis address while they were in tbe Oasis Bar or at any other time or place. It was tbe witness, Walter LaChance, part-owner of tbe Oasis Bar, who called the taxicab, and it was the taxicab driver who assisted Ferns to tbe vehicle and then to tbe door of bis apartment. Here, again every other person in tbe bar bad tbe same opportunity, if any existed to obtain tbe same information respecting Ferns’ place of abode. Thus is presented tbe outrageous proposition that opportunity to obtain such information would tend to connect each of those present witb tbe commission of tbe crime of burglary. Of course, it goes without saying tbat no such presumption attaches to any of tbe many present at tbe Oasis when Ferns “timbered” or, when assisted by tbe tax driver, be departed tbe tavern.
Third, tbe majority say tbat “Each time tbe accused was arrested be was carrying two ‘loids,’ one witb a blue mark; several police officers saw these at tbe time of each arrest; tbe accomplice testified tbe accused used a ‘loid’ and carried two, one witb a blue mark.” Again the infirmity here patent is tbat there is no evidence tbat places tbe accused at Ferns’ apartment; tbat shows tbat be entered such apartment or tbat be there made criminal use of one of tbe “loids” other than tbe uncorroborated testimony of tbe accomplice Carter, and tbe use of such testimony of tbe accomplice to supply corroboration is barred by tbe statute.
Fourth, tbe majority say tbat Carter, “tbe accomplice said be threw Ferns’ checkbook cover down in tbe street. Tbe police found it where tbe accomplice [Carter] said be bad thrown it. These two women found tbe fourth cheek in tbe same neighborhood.” We do not consider some three city *248blocks away as being “in the same neighborhood.” In our examination of the record herein we are simply following the 'method correctly outlined by District Judge Downey in his Instruction No. 21 to the jury for determining from the testb. mony whether or not there is corroboration of the testimony given by the accomplice, George Edward Carter. Of course, Carter knew where he rid himself of Perns’ checkbook cover and Carter knew precisely where to take the police to recover it, but such evidence does not place Harmon at or in Perns’ apartment, nor does it connect Harmon with the breaking and entering of such apartment.
Fifth, the majority say “The accused and the accomplice were together in various Butte bars before and after the time of the burglary; also they were together on the shopping expedition the following day.” Such conclusions and statement are not sustained by the record now before this court. By independent testimony the defendant was placed in the Oasis Bar and the Silver Dollar Bar. In the Silver Dollar Bar the defendant was with a colored man. However, a careful consideration of Carter’s testimony discloses that he, Carter, spent considerable time in drifting back and forth between the Silver Dollar Bar and another bar in that vicinity known as the Silver Slipper. Carter never testified that he was in the Oasis. The record before us discloses that if the defendant was with Carter at all on the night in question, it was only while Carter was in the Silver Dollar Bar. Carter testified that he and the defendant were in the Silver Dollar Bar after the alleged burglary is claimed to have been committed, but the bartender then on shift at the Silver Dollar denied that either the accomplice Carter or the defendant Harmon was in the Silver Dob lar that night after the hour of 12:30 a.m. Never was it directly established that Harmon and Carter were together on Carter’s spending spree and shopping expedition the following day.
Sixth, the majority say that Carter, “The accomplice said he [Carter] forged Ferns’ countersignature to two of Ferns’ *249•checks to buy a wrist watch. When the accomplice [Carter] was arrested he had the wrist watch.” Here again the majority rely upon and use the testimony of the accomplice Carter when the statute commands that they must exclude such testimony and examine and consider the evidence independently ■of any testimony of the accomplice Carter. While this testimony of the accomplice, in itself, might implicate Carter in the commission of some crime in connection with his confessed forgery of Ferns’ cheeks, it most certainly does not connect Harmon, in the commission of an alleged burglary of Ferns’ apartment by the breaking and entering therein in the nighttime.
Seventh, the majority say that Carter, “The accomplice said he used another of Ferns’ traveler’s checks to buy the accused a hat. When arrested the accused, Harmon, was wearing the hat.” While in á proper case this might have something to ■do with the crime of receiving stolen property and it might have some connection with the crime of forgery, but it most assuredly has nothing whatever to do with establishing the crime of burglary for which this defendant Harmon was then on trial. Here again both the State and the majority opinion place absolute reliance upon the testimony of the accomplice Carter in an attempt to prove a breaking and entry into Ferns’ apartment by Harmon. All Carter’s testimony is first, last and all the time, but the testimony of a self-confessed accomplice and the law says that the testimony of an accomplice must be ignored as incompetent 'until and unless there be corroboration by independent non-accomplice testimony. In other words, the record before us must be considered by the jury and examined by the members of this court precisely as though the accomplice'Carter had never testified in order to ascertain whether there be the requisite corroborating testimony.
Eighth, the majority say, “The accomplice and the accused, and McMann, were together during the morning of their arrest.” All the record discloses in this regard is that Carter, a colored man, was seen in the company of two white men and *250a small dog riding in a Cadillac on the streets of Butte. This, was in broad daylight on the morning in question. The jeweler who sold Carter the lady’s wrist watch reported his suspicions to the police as did the haberdasher who sold Carter the two hats when once the haberdasher discovered the countersignature on the traveler’s check handed him by Carter to be a forgery. Now with what crime does all this tend to connect the defendant Harmon? Certainly it does not connect the defendant with the alleged crime of breaking and entering of Ferns’ apartment any more than it tends to connect the small dog or the other white man in the car with the alleged burglary of Ferns’ place of abode.
Ninth, the majority say that the accomplice Carter and the defendant Harmon “were acquainted” and that they “served time together in the Montana State Prison at Deer Lodge.” We fail to see how the fact that the accomplice Carter and the defendant Harmon “were acquainted” or the fact that these two in company with four or five hundred other convicted persons, served out their sentences in the State’s prison at Deer Lodge, corroborates the testimony of the accomplice Carter charging that it was Harmon who broke and entered Ferns’ apartment on the night of February 13, 1958, being but two days after Carter’s release from such state penitentiary.
The basic essential facts overlooked by the majority opinion are as follows:
There is absolutely no evidence whatever in the record now before this court that the defendant was ever at or in Ferns’ apartment, or that any breaking or entering thereof occurred, or that the crime of burglary or any other crime was there committed to obtain the traveler’s checks belonging to Ferns, except the testimony given by Carter, the colored man, who, if believed, was personally present at Ferns’ room at 209 South Colorado Street for the express and admitted purpose of relieving Ferns of his money and valuables. The evidence is undisputed that bright and early on the morning of February 14, 1958, State’s witness Carter was in the possession of trav*251eler’s cheeks purchased'by and bearing the signature of Malcolm B. Ferns, which traveler’s checks were then being fraudulently countersigned by Carter, who, after decorating same with the forged countersignature of Malcolm B. Ferns then ■exchanged them for merchandise, first in the jeweler’s store and next in the haberdasher’s shop. In both etablishments Carter presented himself in person, alone and unattended. That to divert suspicion from himself and to implicate others in his dishonest and fraudulent scheme and acts in case he was caught, he bought one hat of the size to fit Harmon and another of a size that would fit some other person still does nothing whatever to place the defendant Harmon at or in Ferns’ .room at 209 South Colorado Street or convict, him of breaking and entering such room at any time or for any purpose.
The fact persists and remains to haunt us that without Carter’s testimony there is no evidence that a burglary was committed, or that Ferns did not lose his traveler’s checks, or that Carter did not pick Ferns’ pocket and take therefrom the loot, which he was carrying and putting into circulation while on his spending spree on the morning after Ferns had experienced a rather large evening. Ferns testified he had visited numerous and diverse bars; that he spent at least $120 ■during that one evening; that he did not know whether he had locked his door before retiring for the night; that he did not hear anybody come into his apartment; and that he did not miss his traveler’s checks until he awakened from his sound sleep, and when he did miss them he saw no occasion for reporting it to the police. Instead he phoned the Oasis Bar to inquire if the bar’s swamper had found any of the traveler’s checks which he at that time assumed he lost or left on the bar.
To conclude that a burglary was committed at all necessarily implies that the testimony of Carter is relied upon, believed and weighed in the balance, contrary to the controlling rule of law which must be applied herein.
Competent independent testimony would prove that Harmon *252on the night of February 13, 1958, was in the Silver Dollar Bar with a colored man. That evidence would not prove that Carter was the colored man with Harmon in the Silver Dollar Bar.
After Harmon left the Silver Dollar there is absolutely no evidence as to his whereabouts, his company or anything else. There is nothing that would tend to connect him with the commission of any crime during the time in question.
The evidence that Harmon was with a colored man in the Silver Dollar does not even raise a suspicion that Harmon was connected with the burglary charged or that he was connected with any crime. A suspicion however strong is not enough. Our law demands that independent evidence must tend to connect the defendant with some fact which would implicate the defendant in the crime charged.
It is essential therefore that the fact tending to connect the defendant with the crime must be a fact relating to some act or fact which is an element of the crime, even though the corroborative evidence be insufficient in itself to establish every element of the offense charged.
Even the suspicion that might be raised by the association of Harmon with the colored man in the Silver Dollar Bar would not be valid to support this conviction because this act only assumes a suspicious nature after you have heard and considered the testimony of Carter. Without that testimony it is nothing more than two men standing in a bar one white, one colored. Mere association is not sufficient to sustain this conviction. See State v. Gangner, 130 Mont. 533, 305 Pac. (2d) 338; State v. Keckonen, 107 Mont. 253, 84 Pac. (2d) 341, and State v. Searle, 125 Mont. 467, 239 Pac. (2d) 995.
The cashing of the traveler’s checks by Carter does not implicate the defendant here nor tend to implicate him at all in the crime charged.
The majority opinion attaches considerable weight to the fact that two small pieces of celluloid were found in the pocket *253of the defendant when, at 3:20 a.m., he was picked up and charged with being drunk.
It was not until Carter, after being picked up the following afternoon, told a story about participating in a burglary, that the police officers ascertained that there might have been a burglary committed.
Without the testimony of Carter as to how or why the bits of celluloid were employed, there were nothing but inanimate objects carried in Harmon’s pocket precisely like the celluloid containers found in the card cases and billfolds carried by most business and professional men of today. The two bits of celluloid could arouse some suspicion that they could be used in the commission of a crime, but they do not necessarily tend to connect this defendant with the commission of a crime.
The majority opinion treats these two small bits of celluloid as if they are something special when they are nothing of the sort. Let the reader inspect his own billfold and card case and ascertain how many celluloid credit cards, and celluloid containers for his various lodge and club membership cards he constantly carries that are of the same material and type as the so-called “burglar tools” which the defendant had in his possession, all of which are equally as well adapted for opening the lock on a door as were the two pieces found in Harmon’s possession and then returned to him by the police.
Ignoring here, as we must, the testimony of Carter, the two pieces of celluloid then do not even raise a suspicion of being tools designed to assist in committing burglaries any more than the same would raise a suspicion if found on any other person, be he lawyer, doctor or judge.
From the testimony of Carter, it is readily apparent that he is a principal in the crime he described. E..C.M. 1947, section 94-204, reads as follows:
“All persons concerned in the commission of a crime, whether it be a felony or misdemeanor, and whether they directly commit the act constituting the offense, or aid and abet in its commission, or, not being present, have advised and encour*254aged its commission, and all persons counseling, advising, or encouraging children under the age of fourteen years, lunatics, or idiots, to commit any crime, or who, by fraud, contrivance, or force, occasion the drunkeness of another for-the purpose of causing him to- commit any crime, or who, by threats, menaces, command, or coercion, compel another to commit any crime, are principals in any crime so committed.”
Not only does Carter’s- testimony establish him to be a principal but it also shows him to be an accomplice in the •crime he so glibly described. See State v. McKnight, 129 Mont. 8, 281 Pac. (2d) 816, 824, 825, and cases cited.
The testimony of an accomplice comes from a tainted source and is of the character of.evidence the legislature considered unreliable and which it sought to protect against by the enactment of section 94-7220, supra. See Stephenson v. United States, 9 Cir., 1954, 211 F. (2d) 702, 704, 705, 53 A.L.R (2d) 812.
The conclusions reached in the majority opinion are based upon the erroneous assumption that the testimony of Carter both a principal and an accomplice, can be used and examined in this case to see if the other testimony is corroborated. This is not the law and has never been the law in this state. The law is as stated in section 94-7220, that “A conviction cannot be had on the testimony of an accomplice, unless he is corroborated by other evidence * * * without the aid of the testimony of the accomplice * * Emphasis supplied.
Until independent evidence or testimony is introduced in a trial of this nature the testimony of the accomplice is not even pertinent to the record. It is only at the time when the indipendent evidence or testimony is introduced which tends to connect the defendant with the commission of the crime that then and only then can the testimony of the accomplice be considered. There is no testimony here, independently given, which tends to connect the defendant, with the commission of the crime charged since no competent, independent testimony was introduced to show that any crime was ever perpe*255trated. It must be realized that tbe testimony of Carter is entirely incompetent. Carter’s testimony then becomes the only testimony upon which this defendant was convicted. Carter’s testimony comes from a tainted source and must be viewed with suspicion, and this defendant cannot be convicted on this testimony according to the provisions of R.C.M. 1947, section 94-7220, supra.
It can be seen that the law demands and the law positively requires that the defendant cannot be convicted unless the accomplice’s testimony is corroborated.
With Carter’s testimony out of this case all that is left is suspicion. Even the suspicion is very weak but in any event we know that we cannot convict on suspicion alone. In State v. Jones, 95 Mont. 317, 324, 325, 26 Pac. (2d) 341, 343, the court held “* * * it is necessary that the independent evidence lead to an ‘inference that the defendant is connected in a criminal way with the commission of the crime.’ State v. Geddes, 22 Mont. 68, 55 Pac. 919, 924; State v. Spotted Hawk, 22 Mont. 33, 55 Pac. 1026.”
Under our Constitution and statutes a defendant cannot be convicted on mere conjectures, probabilities, or suspicions however strong as in some countries. The majority opinion, in effect, overrules State v. Jones, supra; State v. Keckonen, supra; State v. Searle, supra; and State v. Gangner, supra, on the question of the corroboration required of the testimony given by an accomplice. A man’s liberty may not be taken away without “due process of law.”
For the reasons stated, the judgment of conviction should be reversed, the information ordered dismissed, the defendant Harmon be discharged from custody and the cause be remanded to the district court for such purposes.