holding that “[ijnstractions in a criminal prosecution must have a source within the framework of the evidence introduced at the trial.”
How later courts described this case
- holding that “[ijnstractions in a criminal prosecution must have a source within the framework of the evidence introduced at the trial.”
Written by the judges who cited it.
The opinion
*913 CLAYTON, Justice,
dissenting.
I disagree with the majority. One of the reasons behind RCr 9.62 is to prevent an accomplice from “pointing the finger” at the principal defendant and, by so doing, nullifying his own guilt. Professor Wig-more, in his treatise on evidence law, criticized the soundness of the accomplice rule when he wrote:
[T]he legislative creation of a rule of law, by introducing detailed refinements of definition to be applied by the jurors, has merely tended to confuse them with sounds of words, and to place in the hands of counsel a set of juggling formulas with which to practice upon the chance of obtaining a new trial. 7 Wig-more, Evidence § 2057 (Chadbourn rev. 1978).
Additionally, this court recognizes this technical rule to be so weak that we are tentatively disposed to abolish it.
This case does not present the appropriate legal context in which the rule becomes operative. There was evidence “tending to connect the defendant (appellant) with the commission of the crime” which corroborated the accomplice’s testimony. Once this fairly minimal standard of corroboration has been met, as it was here, the question then becomes one of the accomplice’s credibility in the eyes of the jury. And, as Wigmore points out, “credibility is a matter of elusive variety, and it is impossible and anachronistic to determine in advance that . a given man’s story must be distrusted.” 7 Wigmore, supra.
I would hold that under this particular fact situation the trial judge was in a better position to make the determination that he did and that he acted properly. I believe the court is mistaken in this case to substitute its judgment for that of the trial court. It is even a greater mistake when the case is this serious and the grounds for reversal are this thin.
I would affirm the judgment of conviction and the sentence of the trial court.