It is undeniable that without Daniello's testimony the defendant's conviction would have been impossible. There is no attempt to dispute the fact that it was his confession that caused the conviction. He is repeatedly referred to in the district attorney's brief as the "principal witness for the prosecution." He was regarded for all purposes of the trial as an accomplice both in law and in fact. The trial justice, in charging the jury, said: "There is no question about his being an accomplice, if you believe what he says, because he says he is, and that settles that point." Daniello, having turned state's evidence, later, with consent of the district attorney, took a plea and was released, at the request of the district attorney, under a suspended sentence. The rule as to who may be regarded as an accomplice is thus stated in People v. Sweeny (213 N. Y. 37, 46) "To constitute an accomplice one must be so connected with a crime that at common law he might himself have been convicted either as a principal or as an accessory before the fact. (People v. Zucker, 20 App. Div. 363, 365, 14 N. Y. Crim. 464; affd., on opinion below, 154 N. Y. 770; People v. Bright, 203 N. Y. 73, 79.)" Assuming, therefore, that Daniello was an accomplice within the meaning of the statute next referred to, what was the effect of such complicity upon his evidence? Section 399 of the Code of Criminal Procedure reads as follows: "A conviction cannot be had upon the testimony of an accomplice, unless he be corroborated by such other evidence as tends to connect the defendant with the commission of the crime."

The prosecution contended both upon the trial, in the Court of Appeals, and upon the present motion, that there was suffi cient corroboration of the testimony of Daniello to sustain the charge of murder made against the defendant. Such corroboration was claimed to rest principally, although not wholly, on the testimony of John Mancini. The prosecution maintained that Mancini was not like Daniello, an accomplice, but that he was, so to speak, a mere witness or spectator, whose evidence

had the force of corroboration from an independent source or disinterested standpoint. At page 123 of the People's brief in the Court of Appeals this occurs: "There is not one word of evidence in the entire case from which Mancini could possibly be convicted as a principal of this crime, not one word of evidence that connects him directly or indirectly with its commission." His relation to the case is then compared with that of a maid working in a disorderly house with full knowledge of the character of the place, and who has been held not to be an accomplice as a matter of law.

I am wholly unable to subscribe to this proposition. Mancini, as will be seen, was indicted as a principal for the murder of Ferrazano, who was one of the six men whose death was the object of the conspiracy. If a conspiracy were entered into either for the purpose of effecting, or resulting in, the murder of six persons, and three of them were murdered by different members of the criminal conspiracy, all the conspirators are liable as principals for the commission of each murder. If it be true that a criminal conspiracy to commit these murders was formed and that Mancini aided or abetted in their commission, he was "concerned in the commission" of all the crimes, whether present or absent, when each crime was committed. He thereby became an accessory before the fact and liable as a "principal" even though he did not actually participate in any of the homicides. Penal Law, § 2.

Hence, if Mancini were an accomplice in those crimes, his testimony was insufficient to corroborate that of Daniello. What is to be deemed sufficient corroboration under our statute has repeatedly been defined by our courts. A brief notice of the principal authorities will not be out of place.

In People v. Hooghkerk (96 N. Y. 150, 162), Judge Andrews, after referring to this statute, said: "Prior to this statute the rule in the state permitted the jury to convict a defendant upon the uncorroborated testimony of an accomplice (People v. Costello, 1 Denio, 83), but it was the uniform

custom of judges to advise the jury that the evidence of the accomplice should be received with great caution, and it rarely happened that a conviction was had upon his unsupported evidence. The rule now embodied in the statute is substantially the rule which before the statute courts were in the habit of stating to the jury for their guidance, although, as has been said, it was not enforced as a rule of law.

"It is plain that independently of the statutory rule corroborative evidence to have any value must be evidence from an independent source of some material fact tending to show not only that the crime has been committed, but that the defendant was implicated in it, and such is the doctrine of the best considered cases. But neither the doctrine hitherto declared by the courts, nor the rule embodied in the statute, requires that the whole case should be proved outside of the testimony of the accomplice. Such a rule would render the testimony of an accomplice in most cases unnecessary, and would defeat the policy of the law which permits the use of accomplices as witnesses in aid of, and in the interests of public justice."

In People v. Plath (100 N. Y. 590, 4 N. Y. Crim. 53, rev'g 3 N. Y. Crim. 129), Chief Judge Ruger, in referring the rule as to corroboration before the statute, said: "Although such cases are not strictly analogous to those where corroboration is required by statute, they yet furnish some help in determining the degree of proof required in the latter case. The rule as to the corroboration of an accomplice is stated in Roscoe's Criminal Evidence, 122, as follows: That there should be some fact deposed to, independently altogether of the evidence of the accomplice, which, taken by itself, leads to the inference not only that a crime has been committed but that the prisoner is implicated in it.' Russell on Crimes, 962, says: "That it is not sufficient to corroborate an accomplice as to the facts of the case generally, but that he must be corroborated as to some, material fact or facts which go to prove that the prisoner was connected with the crime charged.'"

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The latter case is referred to by Judge Peckham in People v. Ogle (104 N. Y. 511, 515, 6 N. Y. Crim. 165), where he says of the Plath case: "It only requires a corroboration as to some material fact which goes to prove the prisoner was connected with the crime." And he then points out "that the witnesses, in regard to whom the request was made, were not accomplices in any sense of the word." And that: "Even if the rule as to the evidence of an accomplice had been erroneously stated by the court, it was, therefore, wholly immaterial in this case."

* * *

In People v. Everhardt (104 N. Y. 591, 6 N. Y. Crim. 231), Judge Earl says, speaking of the section in question: "This section has changed that rule of law and requires that there should be simply corroborative evidence, which tends to connect the defendant with the commission of the crime. Whether that evidence was sufficient corroboration of the accomplice was for the determination of the jury. The law is complied with if there is some other evidence fairly tending to connect the defendant with the commission of the crime, so that his conviction will not rest entirely upon the evidence of the accomplice." In People v. Elliott (106 N. Y. 288, 292), Judge Earl said: "It is not necessary that the corroborative evidence of itself should be sufficient to show the commission of the crime, or to connect the defendant with it. It is sufficient if it tends to connect the defendant with the commission of the crime. Nor need the corroborative evidence be wholly inconsistent with the theory of the defendant's innocence. court, before it should submit the case to the jury, should be satisfied that there is some corroborative evidence fairly tending to connect the defendant with the commission of the crime, and when there is, then it is for the jury to determine whether the corroboration is sufficient to satisfy them of the defendant's guilt." To the same effect is the case of People v. Mayhew (150 N. Y. 346).

The

In People v. Christian (78 Hun, 28; affd., 143 N. Y. 666,

on opinion below), it was held that: "Under this statute it matters not how consistent the narration of the accomplice, how much it is fortified by detail in the statement itself, or how. reasonable and convincing the relation of facts by her, it is not enough unless corroborated by such other testimony as tends to connect the defendant with the commission of the crime.”

In People v. Patrick (182 N. Y. 131, 19 N. Y. Crim. 36), Judge Gray, writing the prevailing opinion, quotes from the Mayhew case and says of the rule there stated: "This is but just; or, otherwise, if the statute is to be given a narrower construction, the ends of justice might be often defeated. The law, in its humane policy, intends that the life, or the liberty, of an accused person shall not be sworn away by an accomplice, unless the accomplice be so corroborated, as to some material fact, or facts, as that a belief in his credibility becomes reasonable and, therefore, safe to be entertained."

This rule of corroboration extends also to the proceedings before the grand jury which found the indictment.

In People v. Sweeney (213 N. Y. 37, 42, 32 N. Y. Crim. 232), Judge Chase, after referring to the section under consideration, says in reference to the Code of Criminal Procedure: "It also provides that The grand jury can receive none but legal evidence.' (Sec. 256.) And that an indictment should not be found by a grand jury unless All the evidence before them, taken together, is such as in their judgment would, if unexplained or uncontradicted, warrant a conviction by the trial jury.' (Sec. 258.) It is manifest, therefore, that if the only testimony before the grand jury is the testimony of accomplices, it cannot be said to be sufficient, if unexplained or uncontradicted, to warrant a conviction by the trial jury."

The rule as to corroboration of the testimony of an accomplice is subject to an important exception which has bearing upon the question to be decided at this time. The exception is stated in the syllabus of the case of People v. O'Farrell (175 N. Y. 323, 17 N. Y. Crim. 407), as follows: "The fact that