I do not agree with the conclusion reached by the majority that the evidence is sufficient, without the aid of the testimony of the two alleged accomplices, to connect appellant with the crime alleged. Under the statute, C. S., sec. 8957, a conviction cannot be sustained on the uncorroborated testimony of an accomplice. And while it is not necessary that an accomplice be corroborated in every respect, it is necessary that there be corroborating evidence upon some material fact or circumstance, which in itself, and without the aid of the testimony of the accomplice, tends to connect the defendant with the commission of the offense. (State v. Knudtson, 11 Idaho 524,83 P. 226; State v. Bond, 12 Idaho 424, 86 P. 43; Statev. Grant, 26 Idaho 189, 140 P. 959; State v. Smith, 30 Idaho 337,164 P. 519.)
The information alleged that the appellant and the two codefendants conspired together and agreed to sell " intoxicating liquor for beverage purposes." The object of the alleged agreement or conspiracy is unlawful. (C. S., sec. 2606.) And it is unlawful to conspire to do an unlawful act. (C. S., sec. 8204.) It is elementary that a conspiracy consists of at least three material elements. There must be a combination of two or more persons. There must be an agreement. There must be an unlawful purpose or act to be accomplished, or a lawful purpose to be accomplished by unlawful means. (5 Rawle C. L. 1065.)
Does the independent evidence tend to show that appellant and the accomplices conspired to commit an unlawful act, to sell intoxicating liquor? For the purpose of this test, we may eliminate from our consideration the testimony of the two accomplices, and examine the testimony of the witnesses Veatch and Agnew to determine if their testimony tends to show that appellant and the accomplices conspired to sell intoxicating liquor.
Veatch asked appellant, "What's the matter . . . ." and appellant said: "Nothing more than Morris, deputy sheriff, came down to the house and took me over in South Boise to make a raid over there. I went along with Morris, *Page 466 he brought the sheriff's car down to the house and got me and I went over." There is certainly nothing in this testimony that tends to connect appellant with a conspiracy to sell intoxicating liquor.
The most that can be said of Sheriff Agnew's testimony is that appellant asked him, "If I get you a man that will put you straight on this matter will you go through with it?" Agnew said he would, and the appellant produced Williams; and appellant and Williams took Agnew and his deputies to a point outside of Boise and assisted in locating a quantity of intoxicating liquor. By his actions it may be surmised that the appellant had been to the spot and knew that the liquor was there. But is this sufficient evidence of the alleged conspiracy? Does it tend to establish an agreement between the appellant and accomplices to sell intoxicating liquor? I think not. It shows a guilty knowledge on the part of appellant concerning the location of the liquor, but it does not relate to a conspiracy to sell. Had the unlawful act, with respect to which they are alleged to have conspired, been the unlawful possession of intoxicating liquor, the corroborating evidence might be sufficient to connect appellant with the commission of the offense.
The majority say that from the testimony of Agnew "It is apparent, and the jury was warranted in finding, that appellant had more definite and certain knowledge as to where this liquor had been cached than could be obtained from a description that either of the other defendants could have given him." Granting all this and conceding even that the evidence shows that appellant assisted in caching the liquor, still where is the corroborating evidence that tends to connect appellant with a conspiracy to sell intoxicating liquor? There is none. In fact, the majority concedes the correctness of this conclusion in saying: "While the testimony of the sheriff does not corroborate the testimony of the two accomplices with regard to the agreement of the three that one of them should sell the liquor." It is the conspiracy to sell with which we are dealing. According to Agnew's testimony, a crime may have been and *Page 467 doubtless was committed, but it was the crime of possession, if anything, and not a conspiracy to sell. It is true the corroborating evidence may be slight, but it must tend to connect the defendant with the commission of the offense charged, the conspiracy to sell, in this case. The possession of intoxicating liquor is not a material element of the crime of a conspiracy to sell intoxicating liquor. One can sell intoxicating liquor without having it in his possession; one can conspire with others to sell intoxicating liquor without having it in his possession; and the mere possession of intoxicating liquor is neither a necessary element of the crime of selling intoxicating liquor nor of the crime of conspiring with others to sell intoxicating liquor. The statute, C. S., sec. 8957, says that ". . . . the corroboration is not sufficient if it merely shows the commission of the offense. . . . ." The majority in effect holds that corroboration is sufficient which shows the commission of another and different offense. (See 5 Rawle C. L. 1087.
That the evidence of the two accomplices fully and completely establishes the commission of the crime charged cannot be disputed, but under the statute a conviction cannot be had on the uncorroborated testimony of an accomplice. Being convinced that the corroborating evidence in this case does not tend to connect the appellant with the commission of the offense of a conspiracy to sell intoxicating liquor, I am of the opinion that the judgment should be reversed. *Page 468