The statement of facts contained in the foregoing opinion, connecting appellant with the commission of the crime of which he was convicted, is supported by the testimony of Bert Rowe, a witness for the state, who pleaded guilty to, and was adjudged convicted of, that crime. Rowe is further discredited by a statement contradicting his evidence in material particulars which he admitted he made prior to the trial; also by the testimony of witnesses to the effect that his general reputation for truth, honesty and integrity in the community in which he resided was bad. No witness was offered on behalf of the state to testify to the contrary.
The serious question in this case is as to the effect of the refusal to give certain instructions requested by appellant, touching the corroboration of an accomplice. Rowe testified appellant hired him to burn the dance hall known as Riverside Gardens. At the trial some cans, sacks and a rug were introduced in evidence which were shown to have been found near the dance hall shortly after the attempt to burn it was made. No witness, other than Rowe, testified to anything tending to connect appellant with these exhibits. Emil Zitlau, a witness by whom it was sought to identify them, and whose testimony is relied on to support the majority opinion, was unable to do so. On direct examination he testified as follows:
"I don't know whether they are the cans I seen. There was two cans; two square five-gallon cans taken out of the back room by Bert and Earl Brown. *Page 592
"Mr. Bandel: (To witness.) Did they look like the cans marked Exhibits '1' and '3'?
"Witness: I have no particular marks; that is about all I know; they were square five-gallon cans like these.
. . . . . . . . . . . . .
"Q. Referring particularly to plaintiff's Exhibit '1' of which the sack is a part, do you recognize this sack as being the sack in which the can was placed at that time and place?
"Mr. Miller: We object to that as leading, your Honor.
"Mr. Bandel: (To witness.) Do you recognize the sack, at all?
"Witness: No."
On cross-examination he testified:
"Q. You don't know whether Exhibits '1' and '3' are the same cans, or not?
"A. I couldn't be certain; no.
"Q. As I understand your testimony, you merely know that it was two square five-gallon cans?
"A. Yes, sir.
. . . . . . . . . . . . .
"Q. Now, then, you don't know whether either one of these two Exhibits are the ones that was taken out of the dance hall (referring to the dance hall managed by appellant) or whether this (Indicating Exhibit '2') might have been one?
"A. I don't know.
"Q. And don't profess to know?
"A. No, sir."
Because of lack of evidence, other than that of the accomplice Rowe, connecting appellant in any way with the exhibits, the refusal to give requested instruction numbered 3, quoted in the foregoing opinion, was error.
As pointed out in the opinion, the judge refused to instruct the jury, at appellant's request, that, as a matter of law, Emil Zitlau was an accomplice. The majority ofV the court justifies the refusal to so instruct on the theory that the evidence was not clear and convincing that the witness *Page 593 was an accomplice and, therefore, it was proper to leave the question of whether he was or not to the jury. It is stated in the opinion, in effect, that whether a witness is an accomplice or not is a question of fact for the jury unless it appears, without substantial conflict in the testimony, that he is an accomplice, in which event, of course, it becomes a question of law for the court.
Nevertheless, the majority holds it was not prejudicial error for the judge to refuse to instruct the jury "that Ed Casey, Theo Casey, Jack Casey, Hyrum Bush and Bert Rowe are, as a matter of law, accomplices," and seeks to justify so holding on the theory that the evidence shows conclusively these men were accomplices and, therefore, appellant could not have been prejudiced by the error committed in refusing to give the requested instruction.
Only when the evidence clearly establishes that fact does it become the duty of the judge, when properly requested, to instruct that a witness is an accomplice. When at fact clearly appears, as it did in this case with respect to Rowe, Bush and the three Caseys, the court owes the defendant a duty to name the witnesses who are accomplices, in instructing the jury, in order to protect him against the recognized likelihood of being wrongfully convicted on the uncorroborated testimony of an accomplice, or on the testimony of an accomplice corroborated only by the testimony of another accomplice.
We cannot say the jury did not consider the testimony of Bush and the Caseys as corroborative of that of Rowe. Rowe testified Brown hired him to burn the building, and Bush and the Caseys testified Rowe hired them to help commit the crime, and told them Brown was to furnish the money to pay for doing so. None of them, other than Rowe, testified to having had any conversation with Brown looking to the commission of the crime, nor does it appear Brown knew of the complicity of Bush or either of the Caseys in its attempted commission. Under these circumstances it is probable the jury looked upon Rowe as the accomplice of Brown and considered the testimony of Bush and the *Page 594 Caseys as corroborative of the testimony of Rowe. The instruction, requested and refused, would have prevented this.
The failure of the court to give an instruction, when properly requested, which would point out who were accomplices within the meaning of the law requiring such witnesses to be corroborated and prohibiting their corroboration by the testimony of each other, was prejudicial error. In Cudjoe v.State, 12 Okl. Cr. 246, 154 P. 500, L.R.A. 1916F, 1251, the criminal court of appeals of Oklahoma stated the rule, applicable here, as follows:
"When the question of an accomplice arises in the trial of a case, the general and accepted rule is for the court to instruct the jury on the law of accomplice testimony and leave the question as to whether or not the witness is an accomplice for the determination of the jury as a question of fact. But where the facts are not in dispute, or where the acts and conduct of the witness are admitted, it becomes a question of law for the court to say whether or not those acts and facts make the witness an accomplice. Where he is admitted to be such, or where the undisputed facts show him to be an accomplice, the court may so charge without invading the rule that the court should not comment on the credibility of any witness. (Authorities cited.)
"If two or more accomplices testify, the same corroboration is required as if there be but one; an accomplice can neither corroborate himself nor another accomplice."
See, also, State v. Carr, 28 Or. 389, 42 P. 215; People v.Schumann-Heink, 98 Cal. App. 225, 276 P. 625; People v.Allison, 200 Cal. 404, 253 P. 318; Winfield v. State,44 Tex. Cr. 475, 72 S.W. 182.
Because of the refusal to give the requested instructions, above discussed, the judgment should be reversed and a new trial granted.