meaning of said section of the code. But the language of Daniels, J., in the case of People v. Smith, disposes of this objection. The learned judge says, "The purchaser has been subjected to no criminal accountability whatsoever, and by the mere purchase he could not be a participant in the offense. That was performed wholly and exclusively by the defendant, for she, unaided by the purchaser, acted alone in making the sale. An accomplice is a person involved either directly or indirectly in the commission of the crime. To render him such, he must in some manner aid, or assist, or participate in the criminal act, and by that connection he becomes equally involved in guilt with the other party, by reason of the criminal transaction." See Com. v. Williard, 22 Pick. 476; Com. v. Downing, 4 Gray, 29; Campbell v. Com. 84 Pa. 187; State v. McKean, 36 Iowa, 343, 14 Am. Rep. 530; St. Charles v. O'Mailey, 18 Ill. 407; Smith v. State, 37 Ala. 472; People v. Farrell, 30 Cal. 316.

Duer, Ch. J., says: "The principle deducible from the cases undoubtedly is, that an accomplice, although a competent witness against the associates and partners of his guilt is, nevertheless, only admissible from reasons of judicial necessity and policy, and in furtherance of the essential ends of public justice. And the question always addresses itself to the discretion of the court; not to their judgment as to the general competency of the witness, but to their sound legal discretion, whether, upon a full consideration of the facts and circumstances of the case, he shall be permitted to testify under an implied promise of pardon, which vests in him an equitable title thereto, if he speaks the truth." People v. Whipple, 9 Cow. 707.

Accomplices, whether related as principal and accessory or equally concerned in guilt, are competent witnesses for each other, except when under a joint indictment. If tried under joint indictment, whether tried together or separately, neither is competent for the other. Abbott, Trial Brief, § 375.

§ 323. Corroborative Testimony should be Required.-As we have seen, it is competent for the jury to convict upon the uncorroborated testimony of an accomplice, and when corroboration is deemed safe, or even necessary, the rule as to the manner and extent of the corroboration is not definitely settled. Learned judges have differed on the subject. Chief Baron Joy, in his treatise on the Evidence of Accomplices, page 98, after reviewing

the cases, says: "The only rule, therefore, which has the appearance of reason to support, is that which I have endeavored to show, has uniformly and without an exception been laid down and acted upon by the English judges, which is, that the 'confirmation ought to be in such and so many parts of the accomplice's narrative as may reasonably satisfy the jury that he is telling truth,' without restricting the confirmation to any particular points, and leaving the effect of such confirmation (which may vary in its effect, according to the nature and circumstances of the particular case) to the consideration of the jury, aided in that consideration by the observations of the judge." In Rex v. Birkett, 1 Russ. & R. 251, the twelve judges agreed that "an accomplice did not require confirmation as to the person he charged if he was confirmed as to the particulars of his story."

In Reg. v. Farlar, 8 Car. & P. 106, Lord Abinger, Ch. B., said: "It is a practice which deserves all the reverence of law that judges have uniformly told juries that they ought not to pay any respect to the testimony of an accomplice unless the accomplice is corroborated in some material circumstance. Now, in my opinion, the corroboration ought to consist in some circumstance that affects the identity of the party accused. A man who has been guilty of a crime himself will always be able to relate the facts of the case; and if the confirmation be only on the truth of that history, without identifying the persons, that is really no corroboration at all. The danger is that when a man is fixed, and knows that his own guilt is detected, he purchases immunity by falsely accusing others." State v. Chyo Chiagk, 92 Mo. 395.

To sufficiently corroborate the testimony of the accomplice there should be some fact testified to entirely independent of the accomplice's evidence, which, taken by itself, leads to the inference, not only that a crime has been committed, but that the defendant is implicated in it. People v. Elliott, 5 N. Y. Crim. Rep. 204.

Corroborative evidence is any evidence which properly induces the belief that the facts testified to by the accomplice are true. Rex v. Jones, 31 How. St. Tr. 251, 325; Thompson, B., in Rex v. Swallow, 31 How. St. Tr. 967, 980; Joy, Evidence of Accomplices, 68, 98. Such evidence must corroborate some material portion of the accomplice's testimony. Com. v. Bosworth, 22 Pick. 397. Material testimony is such testimony as may properly

influence the result of the trial. Melluish v. Collier, 15 Q. B. 878; Com. v. Merriam, 14 Pick. 518, 25 Am. Dec. 420; 2 Bouvier, Law Dict. title Materiality; 1 Stark. Ev. (4th ed.) 822.

Whenever corroboration is required it must be as to material facts. People v. Plath, 100 N. Y. 593, 53 Am. Rep. 236; People v. Courtney, 28 Hun, 589; People v. Williams, 29 Hun, 520; Ormsby v. People, 53 N. Y. 474; Kenyon v. People, 26 N. Y. 207, 84 Am. Dec. 177; Boyce v. People, 55 N. Y. 645; Armstrong v. People, 70 N. Y. 38.

The corroborative evidence must go to prove the entire crime and not only one or more of its constituent elements; and proof of one element is no proof of another. People v. Plath, 100 N. Y. 590, 4 N. Y. Crim. Rep. 53. "There must 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." People v. Plath, supra. "Such evidence as merely raises a suspicion of guilt is insufficient to satisfy the requirement of section 399; the evidence must carry conviction to the minds of the jury." People v. Williams, 1 N. Y. Crim. Rep. 344. "The corroboration of any witness needing support ought to be by some fact, the truth or falsehood of which goes to prove or disprove the offense charged." Frazer v. People, 54 Barb. 310.

The additional evidence here, if any, being purely presumptive, it is important to bear in mind the principles by which the probate force of circumstantial evidence is determined and measured. People v. Kennedy, 32 N. Y. 145. "All proof must begin at a fixed point. The law never admits of an inference from an inference. Two imperfect things cannot make one perfect. The circumstance itself from which the inference is to be drawn, is never to be presumed, but must be substantially proved; for who can prove one doubtful thing by another?" Phillips, Theory of Presumptive Proof; Lawson, Presumptions, 569. “To take presumptions in order to swell an equivocal and ambiguous fact into an criminal fact, is an entire misapprehension of the doctrine of presumptions." Evans v. Evans, 1 Hagg. Consist. Rep. 105. "In determining a question of fact from circumstantial evidence, there are two general rules to be observed; First, the hypothesis of guilt should flow naturally from the facts proved, and be consistent with them all; second, the evidence must be such as to

exclude, to a moral certainty, every hypothesis but that of his guilt of the offense imputed to him; or, in other words, the facts proved must all be consistent with and point to his guilt not only, but they must be inconsistent with his innocence." People v. Bennett, 49 N. Y. 137; People v. Stokes, 2 N. Y. Crim. Rep. 382. "If the facts be consistent with innocence, they are no proof of guilt." Ormsby v. People, 53 N. Y. 475; People v. Courtney, 28 Hun, 593; Frazer v. People, 54 Barb. 309; Com. v. Holmes, 127 Mass. 424, 34 Am. Rep. 391. "Conduct being susceptible of two opposite explanations, we are bound to assume it to be moral rather than immoral." Port v. Port, 70 Ill. 484; Mason v. State, 32 Ark. 239; Carroll v. Quynn, 13 Md. 379. "Where the facts of a case are consistent with honesty and dishonesty, a judicial tribunal will adopt the construction in favor of innocence." Greenwood v. Lowe, 7 La. Ann. 197. "If a fair construction of the acts and declarations of an individual do not convict him of an offense-if the facts may all be admitted as proved, and the accused be innocent, should he be held guilty? He may be guilty, but he may be innocent." United States v. The Burdett, 34 U. S. 9 Pet. 682, 9 L. ed. 273; Frazer v. People, 54 Barb. 306.

§ 324. Extent of Corroboration is for the Jury.-The degree of evidence which shall be deemed sufficient to corroborate the testimony of the accomplice, is 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. People v. Everhardt, 104 N. Y. 591. Among the authorities that may be cited to sustain the averments of the text are the following: Com. v. Holmes, 127 Mass. 424, 34 Am. Rep. 391; People v. O'Neil, 109 N. Y. 267; State v. Maney, 54 Conn. 178; People v. Jaehne, 6 N. Y. Crim. Rep. 237; People v. Kerr, 6 N. Y. Crim. Rep. 406; People v. Ricker, 7 N. Y. Crim. Rep. 22; Berry v. People, 1 N. Y. Crim. Rep. 57; People v. Hooghkerk, 96 N. Y. 149; People v. Sherman, 103 N. Y. 513; People v. Ryland, 97 N. Y. 126; People v. Davis, 21 Wend. 309; People v. McCallam, 5 N. Y. Crim. Rep. 143; Maine v. People, 9 Hun, 113; People v. Sharp, 5 N. Y. Crim. Rep. 388; People v. Lawton, 56 Barb. 126; People v. Thomsen, 3 N. Y. Crim. Rep. 562; People v. Haynes, 55 Barb. 450; People v. Emerson, 20 N.

Y. S. R. 18; Frazer v. People, 54 Barb. 306; People v. Runge, 3 N. Y. Crim. Rep. 85.

We have seen that the rule requires in order to secure a conviction, that the evidence of an accomplice should be corroborated, but this corroboration need not extend in matters of particularity to the entire story of the accomplice. It is sufficient if the substance of his story is sustained by the confirmatory matter. Ettinger v. Com. 98 Pa. 338. And confirmation may be found in the testimony of the wife of the accomplice. State v. Myers, 82 Mo. 558, 52 Am. Rep. 389.

The province of corroborative evidence is, by confirming the testimony of the accomplice in regard to matters which are not within the general knowledge but likely to be known only to those engaged in the crime, to induce the belief that he is to be generally credited in his statements. Its weight is for the jury, and there is no established rule of law which requires the judge, in a case where there is corroborative evidence of this character upon matters material to the issue, to advise the jury to acquit unless there is also corroboration of the statements connecting the defendant with the crime. Com. v. Scott, 123 Mass. 222, 25 Am. Rep. 81.

In Com. v. Bosworth, 22 Pick. 397, the court says, as to the kind of corroboration required: "It is perfectly clear that it need not extend to the whole testimony; but, it being shown that the accomplice has testified truly in some particulars, the jury may infer that he has in others. But what amounts to corroboration? We think the rule is, that the corroborative evidence must relate to some portion of the testimony which is material to the issue." In that case the evidence, held to be competent as corroborative, confirmed the accomplice as to a fact which did not tend to connect the defendant with the crime. Since this decision, it has been usual to instruct the jury in substantial compliance with the rule stated therein, though the practice of different judges in the exercise of their discretion has varied. Com. v. Brooks, 9 Gray, 299; Com. v. Price, 10 Gray, 472, 71 Am. Dec. 668; Com. v. O'Brien, 12 Allen, 183; Com. v. Larrabee, 99 Mass. 413; Com. v. Elliot, 110 Mass. 104; Com. v. Snow, 111 Mass. 411. See also Reg. v. Stubbs, Dears. C. C. 555, 7 Cox, C. C. 48.

The principles which underlie the theories previously stated have been repeatedly vindicated by modern adjudication, and are