Thos. H. Gibson, for plaintiff in error. William E. Mullen, Atty. Gen., for defendant in error.

SCOTT, J. The plaintiff in error, defendant below, was charged, tried, and found guilty of the crime of murder in the first degree, and sentenced to suffer the extreme penalty of the law. From the record it appears that George Gerber, the decedent, was, and had been for some time prior to the homicide, engaged in keeping a store on Front street in the city of Laramie; that he did not deposit his money in bank, but was supposed to keep it in the store; and it was generally known that he kept considerable money in coin and currency in a cigar box behind the counter, and from which he made change as occasion required with his customers. During the month of December and the first two or three days of January preceding the homicide, the defendant worked in and about the city of Laramie for a gentleman named Mann, and was seen on different occasions during the evening hours in the store, and on one occasion said to one of the witnesses that he had some money there, and bantered the deceased to play poker with him, but deceased refused. Early in January the defendant went to Hanna, on the Union Pacific Railway, west of Laramie. There were three rooms to the store-the front room, where the miscellaneous stock of goods were kept; the middle one, which was used as a bedroom by deceased; and the rear room, which was used as a storage room. About noon of January 20, 1905, the store not having been opened, people in the vicinity became suspicious that something was wrong and called an officer, who with others forced an entrance by the rear door, the front door being locked, and thence to the middle or bedroom. Here they found the covers of the bed on the floor and the mattress torn open. Passing from this room to the front room, they found the dead body of George Gerber lying in the alleyway behind the counter, and the feet doubled under. The body lay in a large pool of blood, and blood was spattered about and on the partition wall. There was one mark, apparently made by a heavy instrument, over the right eye, two bruises on the back of the head, and several scratches on the neck, and also a knife sticking in the throat almost directly in front and to one side of the trachea. About three or four feet from the body were found two bars of iron which were quite bloody. The papers of the deceased were scattered about, and the cigar box in which he was known to have kept his money was on the floor in front of the counter, and a pocketbook was found behind the counter opened, with nothing in it. The front door was locked and the window shades were down. On the afternoon of the 18th of January the defendant, then being at Hanna, asked one of the witnesses to go east with

him, and the next day, that being the day on which the homicide was committed, again requested this witness to go, saying that they would have some easy money in the morning." This witness saw defendant leaving on the train for the east between 12 and 1 o'clock of that day. The same evening the defendant, together with the witness Dicey, were seen, recognized, and tamed with, in a Chinese restaurant two blocks from the deceased's place of business by the city marshal of Laramie, and they then said they were not going to stop, but were going out, and that they left that night, reaching Cheyenne in the early morning. The witness Dicey or Burney was also seen and recognized in deceased's store on the same evening; i. e., the evening of the 19th. Dicey or Burney testified as a witness on behalf of the state that after getting their supper at the Chinese restaurant they went down the track to a point opposite the store of deceased, and prior to reaching that point the defendant and another man who was with him picked up two bars of iron; that he (Dicey) went into the store and saw deceased was there, but there were customers there also, and he so reported to the defendant and the third man, whom he claims accompanied them in the box car, and who with defendant got into the same box car the first station east of Rawlins; that after he returned from the store Dicey says they waited until the deceased, being alone, started to lock up the store for the night. Then he says his associates in crime went into the front door, and he saw them grapple with deceased and saw and heard the blows struck. Then there was silence, and in a few minutes his associates emerged from the store with a hat full of money which was divided between them and they took the first train east.

1. The defendant assigns as error the admission over his objection of the evidence as to what the defendant said in a conversation which took place at the sheriff's office in Laramie City between the defendant and the witness Dicey. It appears from the preliminary proof as to the admissibility of this evidence that Sheriff Smalley had the defendant in his custody in Cheyenne, and. having suspicions that he was implicated in the crime from a confession and a description given by Dicey to the officers at Laramie City, told the defendant that he answered the description of one of three men who were wanted on a charge of murder committed at Joplin, Mo., on December 31, 1904. Clay was asked by the sheriff if he could prove that he was not the man, and the defendant said he could do so, and thereupon gave the sheriff a. detailed statement of his whereabouts from a little before Christmas to January 19th. the day on which Gerber was killed, and that he had during December worked in Laramie City for a Mr. Mann driving a dray. In pursuance of this conversation Sheriff Smalley under pretense of having the de

fendant identified by Mr. Mann, but really to see if Dicey could identify him, took the defendant to Laramie City and to the Albany county sheriff's office, arriving at the office between 9 and 10 o'clock at night, where were Sheriff Reals, the undersheriff, and jailer of Albany county. Here in the presence of the persons named, Sheriff Smalley spoke of the defendant answering the description of one of the men wanted in Joplin, Mo., and again asked the defendant the name of the inan for whom he said he worked in Laramie, and the defendant answered, saying he had told him three or four times before. Smalley then said to Sheriff Reals that he wanted him to keep defendant until the next day, as he wanted to see Mann, who ran the woodyard, and if he couldn't identify him he would have to take him to Hanna, and said: "By the way. Reals, you have a man in jail who can identify this man Clay." Thereupon the undersheriff and jailer went after Dicey. Up to this time, nor was there at any time, any inducement, threat, or promise of reward or immunity from punishment held out to the defendant, nor is there any evidence that the confronting of the defendant by Dicey was brought about for any purpose other than to see if the latter could identify him, nor was any accusation as to defendant's guilt by Dicey advised or contemplated. incriminating statement was made to an accomplice, to one who participated and assisted in the commission of the crime, and not to one in authority. The object and purpose of a preliminary examination of this kind is to determine whether the incriminating statements ought in any event to go to the jury; and if it clearly appears that they were made under a promise of immunity from punishment, duress, or by putting in fear, then they should be excluded. If, however, it appears that such statements were voluntary, or the evidence is conflicting as to whether they were in fact voluntary, then, in either event, such statements should go to the jury, together with evidence of the facts and surrounding conditions at the time they were made, with instructions to determine their character, and if, from the evidence, the jury find that they were not voluntary. then to exclude them from their consideration; otherwise, to consider them with the other evidence in the case, and give them such weight as in their judgment they are entitled to. There was no error in permitting these statements to go to the jury, and they will be set out fully in the consideration of another branch of this case.

The

2. The court, over the objection of the defendant, instructed the jury that it was a question for them to determine from the evidence as to whether or not any witness who testified in the case was an accomplice. Prior to giving this instruction the court properly charged the jury as to what in law constituted an accomplice. The question as to whether or not one is or is not an

Bell v.

accomplice is one of fact and goes to the credibility of the witness and to the weight of his testimony. His attitude toward the case can only be shown by the evidence; and, though he may or may not be an accomplice, it is error in either case to so charge, but not prejudicial or reversible, because it is favorable to the defendant, who cannot complain. The court followed the better practice, one that was eminently fair to both the state and the defendant, of giving the definition of an accomplice, leaving the jury free to find from the evidence whether or not any witness was an accomplice. State, 39 Tex. Cr. R. 677, 47 S. W. 1010. In Smith v. State, 10 Wyo. 157, 67 Pac. 977, the court instructed the jury that a certain witness was in law an accomplice, and, having so instructed and fixed the status of the witness, this court held "that it gave the defendant the right to have his testimony treated as that of an accomplice in the charge of the court." That question is not here involved, for in this case the court nowhere assumed or instructed that any witness was an accomplice, but gave the usual customary instruction with reference to the evidence of any witness found to be such.

3. Over the objection of the defendant the court instructed the jury that the uncorroborated testimony of an accomplice was sufficient upon which to base a verdict of guilt, if they were satisfied beyond all reasonable doubt of its truth. This instruction must be considered in connection with the evidence, and also that the corpus delicti of the crime charged consists of, first, criminal homicide. and. second, the defendant's agency in the commission of the same. The former was clearly shown in this case, independent of any evidence of the witness Dicey, conceding him to have been an accomplice. The criminal agency of the defendant as testified to by Dicey was corroborated by the criminating statements made by the defendant himself when confronted by Dicey for the purpose of identification in the Albany county sheriff's office. It thus appears that the state did not rely upon the uncorroborated evidence of an accomplice for a conviction. The instruction assumed that there was no corroborating evidence, when there was such evidence of a damaging nature, which the state was entitled to have go to the jury for their consideration, and it was for them to determine its weight and sufficiency. It is true that they may give no weight to the corroborating evidence; but that is a question for them, and not for the court. The rule in such case is that the jury should not be instructed that they may base their verdict upon the uncorroborated evidence of the accomplice, if they believe it to be true, unless explained and accompanied by other instructions, because such an instruction by implication excludes other evidence in the case from their consideration. Such an instruction, standing alone, would clearly be

As

error, when there is evidence tending to explain, contradict, or affecting the weight of corroborating testimony; and it would also be prejudicial, for it would inform the jury that they could predicate their verdict upon a part, and not upon all, of the evidence in the case. The defendant, however, is not in a position to complain of this instruction; for at his request the court instructed the jury that under the laws of this state a person accused of crime could be convicted upon the uncorroborated evidence of an accomplice, but that it was questionable if they should so convict, and "that it was dangerous to do so unless the testimony of the accomplice is corroborated by evidence tending to connect the accused with the crime charged, and there should be evidence tending to show that the defendant was engaged and took part in the actual commission of the crime." This instruction was fully as broad and to the same effect as the one complained of, and it was further coupled with the usual caution in such a case. to whether such evidence alone is sufficient to support a conviction was discussed by this court in Smith v. State, 10 Wyo. 157, 67 Pac. 977, but was not decided; nor do we, in view of the evidence, deem it necessary to here decide that question, for the defendant cannot be heard to complain of an instruction which states the law the same as the court states it in an instruction given at his request. The instruction is further complained of in that it does not state to the jury what constitutes corroboration. It says that the corroboration must be upon any material fact, and it is urged that the jury were left to grope in the dark as to what constituted a material fact, and that the instruction is within the rule announced in Smith v. State, supra. It may be conceded that, standing alone, the instruction is open to that objection; but by defendant's instruction upon this phase of the case, already quoted from, the jury were told that "there should be evidence tending to show that the defendant was engaged and took part in the actual commission of the crime." We think this fairly put before the jury what constitutes a material fact in this case upon which corroboration was necessary. The usual cautionary instructions as to receiving and weighing the evidence of one shown to be an accomplice were given, and we think upon this question the instructions taken as a whole fairly presented the law to the jury.

4. By the fifteenth and sixteenth instructions the court instructed the jury, over the objection of the defendant, that in any conversation proven by the state what the defendant said against himself the law presumed to be true, because against himself, but what he said for himself they were not bound to believe, and they might treat the Jatter statements as true or false just as they believed them to be when considered with

the other evidence in the case. The seventeenth instruction upon the same subject, also objected to, is a little milder in language, for it tells the jury that they may be lieve that which charges the prisoner, and reject that which is in his favor, if they see sufficient ground in the evidence for so doing. The first two instructions are clearly erroneous, as being upon the weight of the evidence, and the last instruction in connection with the former does not change, but accentuates, rather than softens, their effect. They are taken from State v. West, 69 Mo. 401, 33 Am. Rep. 506, where the opinion expressly states that they are open to criticism. They were given and reluctantly approved in State v. Curtis, 70 Mo. 594, and later an instruction that if the jury believed that any statements of the defendant had been proven by the state and not denied by the defendant they should be taken as true was by the same court held to be prejudicial error upon two grounds, viz.: That it conveyed to the jury the idea that the duty was upon the defendant to disprove such statements, or, in other words, that it shifted the burden of proof to the defendant, and also that the court invaded the province of the jury, and decided for them the weight of the evidence and the credibility of the witnesses. State v. Hudspeth, 150 Mo. 12, 51 S. W. 483, State v Hollingsworth (Mo.) 56 S. W. 1087. In Welsh v. State, 96 Ala. 92, 11 South. 450, a verdict and judgment for murder in the first degree was set aside and reversed because the court instructed the jury that what the defendant said against himself in a conversation or statement introduced in evidence "the law presumes to be true because against himself." The court in passing upon the question says: "There is a sort of presumption of the truth of declarations against interest which the law adjudges as the basis of admissibility. But it extends no further than this. When the office of the presumption has been performed, it ceases to exist. It no longer attends upon evidence when it was gotten before the jury. * The charge was an invasion of the jury's province, and should not have been given." The rule announced in this case and the later cases from Missouri already referred to seems to be the general and universally accepted rule. In 6 Ency. of Law, at page 580, it is stated that as a general principle after a confession has been introduced, and the same rule undoubtedly applies to a criminating statement, it is for the jury to determine its credit and weight in connection with all the facts and circumstances proved upon the trial. Numerous authorities are there cited in support of the text. The same rule is announced in Wigmore on Ev. §§ 2550, 2551.

At the request of the defendant the jury were instructed that they were the sole judges of the weight to be given to such statements, and, unless they were entirely

satisfied to the exclusion of every reasonable doubt that they were made freely and voluntarily, they should disregard them altogether. This, in our judgment, does not cure the error in giving the former instruction; for they are irreconcilable, and the latter in no way destroys the effect of the former. The instructions, considered together, sent the incriminating statements to the jury with the erroneous presumption of their truth, a presumption that went only to their competency and admissibility, and no further. The statements were made at the time the defendant was confronted by the witness Dicey for the purposes of identification, and the witnesses differ as to the exact language used by the defendant when Dicey came into the door of the sheriff's office, where defendanı was, and one says "pointed his finger at," and another says he "looked at, defendant," and said, "You are the man that killed that old man," or "You are the white nigger who killed that old man," or "That's the white nigger that killed the old man." The defendant pointed his finger at Dicey, and said: "Now, here, I was there. I was in on the play, but you are the man who done it," or "No, you are the man. I stood outside while you did the work." It is unfortunate that these criminating statements were not treated as items of evidence, to be considered and weighed by the jury, together with and the same as the other evidence in the case in determining the issue. Conceding that the statements were made, they were but evidentiary facts, and the defendant was not concluded thereby. They were not in the nature of solemn or judicial admissions made at the trial, but were extrajudicial or quasi admissions. They did not amount to a waiver of proof and might be combatted, explained, and their force destroyed, either by direct evidence, or the defendant need not offer evidence, and might rely and take chances on what he deemed inherent weakness of the state's case. In such a case the defendant may hazard his life or liberty wisely or unwisely upon the state's evidence before the jury, or upon errors of law occurring at the trial, and if he fails in the former he does not thereby waive the latter. These instructions were upon the weight of evidence, material to the issue, and practically upon the whole case; for upon the facts whoever committed the homicide did so while in the commission of the crime of robbery, and, if both the defendant and the witness Dicey were so engaged, it mattered not whether deceased came to his death at the hands of the defendant, or of Dicey, or of both, for in law both would be guilty of murder in the first degree as defined by our statute. Section 4950, Rev. St. Wyo. 1899. The court, by telling the jury that these criminating statements were presumed to be true, invaded the province of the jury and fixed their weight. If the law presumed

them to be true, then the rendering of the verdict was a mere perfunctory matter, requiring no deliberation upon, weighing, or consideration of the evidence-an idea which does violence to all teachings of the sacredness of the trial by jury, where the questions of credibility of the witnesses and the weight of the evidence are exclusively for the jury, and the questions of law for the court. It is seriously urged that in view of the evidence this court should assume. that the correct result has been reached and decline to disturb the verdict and judgment. In support of this contention the Attorney General calls our attention to Miller v. State, 3 Wyo. 657, 29 Pac. 136. In that case there was practically a judicial confession. The defendant took the stand, at the close of the state's case, and testified, not only to taking the life of the deceased, but to all the attending circumstances and the motive therefor. Every element constituting the crime charged was substantiated by his evidence, thus in effect constituting a complete waiver of defects, if any, in the state's proof; and, further it was impossible for his testimony to be true and he be innocent. The applicability of the rule there laid down to this case, in which the defendant did not testify before the jury is apparent, and further comment is unnecessary.

For the error in giving instructions 15 and 16, the judgment will be reversed, and the case remanded for a new trial.

Reversed.

BEARD, J. (concurring). We are all agreed that the district court erred in giving instructions 15 and 16, but differ in our opinion as to the effect of such error upon the rights of the defendant; that is, whether or not it was error "affecting materially his substantial rights." By those instructions the jurors were told, in substance, that if they found from the evidence that the defendant had made any statements in relation to the commission of the homicide, that what he said against himself the law presumes to be true, but what he said for himself or in his own behalf they were not "bound" or "obliged" to believe; thus clearly and forcibly giving them to understand that they were bound and obliged to accept as true anything he said against himself. In other words, they were told, in effect, that if they found that defendant had said that he "was there" or "was in on the play," they were to take that as an established fact, whether they believed he was stating the truth or a falsehood. So far as this evidence was concerned, the defendant's presence at the place of and his participation in the commission of the crime were made by these instructions to depend, not upon the truth or falsity of his statements, but solely upon whether or not he had made them. This evidence went to the very essence of

the crime, and, aside from the evidence that the defendant was seen in a restaurant in Laramie about 7 o'clock on the evening before the homicide, it was the only evidence corroborating the testimony of the witness Burney as to defendant's presence at the time and place of the homicide. The right to a trial by jury includes the right of the accused to have the weight of the evidence and the truth or falsity of any testimony adduced tested and determined by the jury; and if the jurors are not permitted to believe or disbelieve a material part of the evidence, as in their judgment is right, then a defendant has had a jury trial in name only. However, if upon the whole record it appears that the defendant was not prejudiced by the error, the judgment should not be reversed. But after repeated examinations of the record I have been unable to come to that conclusion. We cannot say that the jurors believed Burney and therefore must have based their verdict upon his testimony. It is much more probable that they found the statements testified to were made by the defendant, and, finding them to have been made, followed these instructions and relied upon the presumption that they were true. The case is easily distinguished from Miller v. State, 3 Wyo. 657, 29 Pac. 136. There the defendant went upon the stand as a witness in his own behalf. His statements were made in open court, in the presence of the jury, under oath, and where he was represented by counsel. In my opinion to affirm this judgment would be for this court to pass primarily upon the weight of the evidence, instead of reviewing it for the purpose of determining whether or not it is sufficient to sustain the verdict. The jury was not permitted to determine its weight; and this court should not do so in the first instance.

As to what has been considered by some of the courts to be or not to be prejudicial error, I cite, but without commenting upon. the following cases: Perry v. State, 91 Ala. 83, 9 South. 279; Kirby et al v. People, 123 Ill. 436, 15 N. E. 33; Cox v. People, 109 Ill. 457; Reynolds v. City of Keokuk, 72 Iowa, 371, 34 N. W. 167; McCormick H. M. Co. v. Jacobson, 73 Iowa, 546, 35 N. W. 627; Hausman v. Hausling, 78 Cal. 283, 20 Pac. 570; Cahill v. Murphy, 94 Cal. 29, 30 Pac. 195, 28 Am. St. Rep. 88; Thacher v. Jones, 31 Me. 528; Lane v. Crombie, 29 Mass. (12 Pick.) 177; Du Bois v. Perkins, 21 Or. 189, 27 Pac. 1044: State v. Security Bk., 2 S. D. 538, 51 N. W. 337; State v. Patton, 35 N. C. 421; Atwood v. Welton, 57 Conn. 514, 18 Atl. 322; Livingston v. M. E. R. Co., 138 N. Y. 76, 33 N. E. 732; Graves v. Campbell, 74 Tex. 576, 12 S. W. 238; Bindbeutal v. Street Ry. Co., 43 Mo. App. 463; Carter v. Wakeman (Or.) 78 Pac. 362; Lynch v. People (Colo. Sup.) 79 Pac. 1015; Weller v. Hilderbrandt (S. D.) 101 N. W. 1108.

For these reasons, in addition to those stated in the opinion of Mr. Justice SCOTT, I concur in that opinion and in reversing the judgment of the district court.

POTTER, C. J. (dissenting). I regret that I am unable to give my assent to the conclusion reached by a majority of the court in this case. My dissent is based solely upon the proposition that instructions numbered 15 and 16 relative to the legal presumptions as to statements made by the defendant against himself were not prejudicial. I agree that the instructions, in the respect mentioned, were erroneous, and that under different circumstances they might have been highly prejudicial; but I can perceive no reasonable ground for holding, upon the record in the case at bar, that the defendant was in any degree prejudiced thereby, or that he was, in effect, denied as to any material fact in the case the right to a jury trial by reason of the giving of such instructions. The only statement of the defendant which could be atected by the instructions referred to was that he was there, or "was in on the play," which was made, if at all, when he was suddenly and unexpectedly confronted in the sheriff's office by the alleged accomplice, Burney, and with the latter's accusation that the defendant was the person who had killed the "old man." It was left to the jury to determine whether the defendant's statement so made had reference to the homicide charged in this case, or whether he made the statement at all or not, since those questions were not taken from the jury by the instructions complained of or any other instruction given in the cause. Assuming that the jury may have found the statement to have been made, and that it had reference to the homicide in question, and they were warranted in so finding, it stood out in the evidence as a statement of a fact, not only undisputed by any testimony in the case, but consistent with all the other facts and circumstances shown by the evidence. It was, of course, the technical right of the jury to pass upon the truth of the statement itself, and to say that they would either believe or disbelieve it; and in practically eliminating the question of its weight from their consideration, by the instruction that it was presumed to be true, the trial court erred. But I do not think that such error amounted to a denial of the right of jury trial in legal effect or otherwise. Nor, in my opinion, must such an error be regarded as necessarily prejudicial. Whether such an instruction is prejudicial or not must depend, as it seems to me, upon the facts and evidence in the case as disclosed by the record.

Taking the statement as made, and as admitting the defendant's presence at the time and place of the homicide, or his connection with it to the extent mentioned in the stateiont, as it is related by one or more of the