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Points Decided.

(June 18, 1914.)

STATE, Respondent, v. WALTER A. GRANT, Appellant. [140 Pac. 959.]

ARSON-CORROBORATION OF EVIDENCE OF ACCOMPLICE-SEC. 7871 CONSTRUED INSTRUCTIONS-QUESTION OF ACCOMPLICE FOR JURYWHAT NECESSARY ΤΟ CONSTITUTE ACCOMPLICE-INDETERMINATE SENTENCE ACT-DISCRETION OF TRIAL COURT IN DENYING MOTION FOR NEW TRIAL.

1. Under the provisions of sec. 7871, Rev. Codes, the corroborating evidence required to substantiate the testimony of an accomplice must be upon some material fact or circumstance which, standing alone and independent of the testimony of the accomplice, tends to connect the defendant with the commission of the offense. (State v. Knudston, 11 Ida. 524, 83 Pac. 226, approved.)

2.

When the question, as to whether a witness is an accomplice, arises in a criminal case under sec. 7871, Rev. Codes, it is the duty of the trial court to instruct the jury on the law of accomplices, and leave the question as to whether or not any witness is an accomplice in the commission of the offense charged, for the decision of the jury as a matter of fact, unless it appear without substantial conflict in the testimony that such witness was an accomplice.

3. In order to make a person an accomplice in the commission of a crime, some aiding, abetting or actual encouragement, by such person must be shown. Mere presence at the plotting of a crime or silent acquiescence in its commission is not, in the absence of a legal duty to act, sufficient to constitute one an accomplice.

4. The failure to disclose known facts regarding the commission of a crime does not render one having such knowledge an accomplice of the person who committed the crime.

5. Held, that under the provisions of sec. 1, chap. 200, of the laws of 1911 (Sess. Laws. 1911, p. 664), amending sec. 1 of the indeterminate sentence act of 1909, taken together with sec. 7008, Rev. Codes, fixing the penalty for the crime of arson in the first degree at a minimum sentence of two years and maximum for life, the defendant was legally sentenced to serve a maximum term of fifty years in the state penitentiary, with a minimum of twenty-five years.

Argument for Appellant.

6. A wide discretion is vested in the trial court in determining the weight to be given to the statements contained in affidavits on motion for a new trial on the ground of newly discovered evidence, and the action of the trial court in denying such motion will not be disturbed where the discretion reposed is not shown to have been abused.

7. The action of the trial court refusing to strike from the files counter-affidavits submitted by the state on defendant's showing on motion for a new trial, on the ground that such counter-affidavits are immaterial and irrelevant, is not a ground for reversal of a judgment of conviction, where it does not appear that the defendant has been prejudiced by allowing such counter-affidavits to remain in the record.

APPEAL from the District Court of the Fifth Judicial District, in and for Bannock County. Hon. J. M. Stevens, Judge.

The defendant was convicted of the crime of arson in the first degree and appealed. Judgment affirmed.

Clark & Budge and Carl Barnard, for Appellant.

"The corroborating evidence required by sec. 7871, Rev. Codes, must be upon some material fact or circumstance which, standing alone and independent of the evidence of the accomplice, tends to connect the defendant with the commission of the offense. (State v. Knudtson, 11 Ida. 524, 83 Pac. 226; State v. Bond, 12 Ida. 424, 86 Pac. 43.)

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"Where the facts are not in dispute, 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." (People v. Coffey, 161 Cal. 433, 119 Pac. 901, 39 L. R. A., N. S., 704; People v. Bunkers, 2 Cal. App. 197, 84 Pac. 364, 370.)

This court held in the Matter of Setters, 23 Ida. 270, 128 Pac. 1111, that under the provisions of the indeterminate sentence act of March 11, 1909, where the minimum sentence is fixed by law, the court has no power to fix a different minimum.

Argument for Respondent.

The affidavits of George Charles Edwards and Barney Horgan set forth facts sufficient to have justified and required the trial court to grant appellant's application for a new trial. (Bates v. State (Miss.), 32 So. 915; Stewart v. State, 52 Tex. Cr. 100, 105 S. W. 809; Piper v. State, 57 Tex. Cr. 605, 124 S. W. 661.)

J. H. Peterson, Atty. Genl., J. J. Guheen and T. C. Coffin, Assistants, and D. C. McDougall, for Respondent.

As to whether or not a witness is an accomplice is a question for the jury, even though the testimony is not in conflict, for it is almost always necessary to construe the language used by the witnesses for the purpose of determining the precise connection of a witness with the one who committed the crime. (People v. Creegan, 121 Cal. 554, 53 Pac. 1082; People v. Coffey, 161 Cal. 433, 119 Pac. 901, 39 L. R. A., N. S., 704; People v. Bunkers, 2 Cal. App. 197, 84 Pac. 364, 370.)

Consenting and acquiescing in the commission of a crime does not render one an accomplice within the meaning of sec. 7871, or a principal within the meaning of sec. 6342, Rev. Codes. (Moore v. State, 4 Okl. Cr. 212, 111 Pac. 822.)

The witness Truman, alias Edwards, was not an accomplice in the commission of the crime in the case at bar. (Levering v. Commonwealth, 132 Ky. 666, 136 Am. St. 192, 117 S. W. 253, 19 Ann. Cas. 140.)

The corroboration in the case at bar, independent of the testimony of Edwards, is sufficient under sec. 7871, Rev. Codes. (Chandler v. State, 60 Tex. Cr. 329, 131 S. W. 598.)

When a new trial is asked upon the ground of newly discovered evidence, the truth of the affidavits and their materiality are essential elements. (Arnold v. Skaggs, 35 Cal. 684; People v. Weber, 149 Cal. 325, 86 Pac. 671.)

"Mere concealment of a crime, or falsifying about knowledge thereof, does not render a witness an accessory or accomplice." (Alexander v. State, 49 Tex. Cr. 93, 90 S. W. 1112; Schackey v. State, 41 Tex. Cr. 255, 53 S. W. 877; Alford v. State, 31 Tex. Cr. 299, 20 S. W. 553.)

ness.

Opinion of the Court-Ailshie, C. J.

AILSHIE, C. J.-In the month of July, 1913, the appellant, Walter A. Grant, and one W. M. Truman, generally known as Billie Edwards, were engaged in conducting in the city of Pocatello the Horseshoe Pool Hall, which contained in addition to pool tables a stock of tobacco and cigars. An important part of the business was an illegal traffic in intoxicating liquors, the county being at that time prohibition territory. Edwards was a partner of appellant in this illegal traffic, but had no interest in the legitimate part of the busiAssociated with these two men about this time, as an assistant in their clandestine operations and as a hanger-on about the place, was a negro by the name of John L. Thomas, commonly known as "Frisco"; also another man by the name of McIlvaine. All these men, with the possible exception of Edwards, who had recently arrived in town, were already at that time in ill favor with the authorities. The appellant himself had been indicted at the March term of the district court for Bannock county upon two charges, one for maintaining a common nuisance in a prohibition district, the other for a violation of the anti-gambling law. To the first charge he plead guilty and was fined $500, which he paid. The second charge was still pending at the time of the occurrence of the events herein referred to. McIlvaine had been repeatedly arrested for bootlegging, and Thomas, according to his own testimony, was being constantly hounded by the police.

On July 21, 1913, according to the testimony of Edwards and Thomas, appellant sent a message to Thomas by Edwards that he would like to see him at the pool hall about midnight of that day. In the interview between appellant and Thomas at that hour in the back room of the pool hall, Edwards was present part of the time, passing back and forth, drinking with Grant and Thomas, and listening to much of their conversation. In this conversation Grant offered Thomas $100 if he would burn the residence of the prosecuting attorney, C. D. Smith, stating as a reason that he wanted to teach him a lesson for interfering too zealously with the bootlegging business. After some parley, Thomas agreed to commit the crime for that sum, and it was agreed that on the following

Opinion of the Court-Ailshie, C. J.

day appellant should show Thomas where Smith lived. On the afternoon of July 22d Thomas met Edwards and Grant at the pool hall and started with them to go to Smith's house, which was in another part of the city. On their way, however, they saw a policeman at a distance and the members of the party separated. Later on in the afternoon Thomas again joined appellant, and the two proceeded to the locality of Smith's house, which was pointed out to Thomas by appellant. During the evening of that day Grant, Edwards, Thomas and McIlvaine met in the back part of the pool hall, and arrangements were completed, not only for the burning of Smith's house by Thomas, but for the burning of a policeman's house on the other side of the city by McIlvaine, with the avowed purpose of having the fires occur at the same time so as to embarrass the fire department in controlling them. At this interview also the parties partook freely of liquor to brace their nerves and make bigger fools of themselves than they usually were.

At about 2:30 on the morning of the 23d, Thomas made two attempts to carry out his part of the program. The first time the fire went out before getting well started. On returning to the pool hall he met Grant and Edwards there. Grant accused him of not having made a good job of it because no alarm had sounded. In about half an hour he started out again and made a second attempt, after which he returned to the pool hall finding Grant and Edwards still there. On this occasion the fire got quite a start, an alarm was given, and the conflagration was extinguished by the fire department. No alarm was heard at the pool hall and Grant again accused Thomas of having made a bad job of the undertaking. Shortly after the parties separated. Later on in the same day and toward evening they met again in Edward's lodgings. Thomas demanded pay for his services. Edwards said that he ought to receive something, and Grant thereupon gave him $5.

Other evidence was introduced by the state, mostly in the way of corroboration of the statements made by Thomas and Edwards. Concerning this evidence, it is sufficient to ob

Idaho, Vol. 26-13

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