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
PALMORE, Chief Justice,
concurring.
It is regrettable that this case must be reversed on grounds that to a layman would appear merely technical.
RCr 9.62, the purpose of which is to prevent an accused from being convicted solely on the testimony of an accomplice without other evidence tending to connect him with the commission of the offense charged, has a long history of some 200 years. It was expressly made a part of our law by the General Assembly in 1854, and remained in the Code of Criminal Practice until carried into the Rules in 1963. Until fairly recent times it was rigorously enforced, in that it was invariably held a reversible error for the trial court not to instruct on it in any case in which there was evidence suggesting that a witness for the prosecution was an accomplice. A fortiori, when the witness was found as a matter of law to have been an accomplice it was absolutely necessary to instruct the jury not to convict on his testimony alone. That, of course, is this case.
*914 Over the past few years the rule has been eroded to the extent that this court has declined to reverse for failure to instruct on the point when the corroborating evidence was strong enough to support a conviction without the accomplice testimony. That, unfortunately, is not this case.
The members of our court as presently constituted share Wigmore’s misgivings regarding the soundness of the accomplice rule. We recognize also that recent decisions have fudged on it. Indeed, we are disposed to abolish it by eliminating the rule. Nevertheless, as of now it is the law, and it was the law when this man was tried. Though he may richly deserve the electric chair, those of us who join in reversing this judgment do so because the principle that a man or woman on trial has the right to be tried in accordance with the law is more important than any individual case. The accomplice rule may not be sound, and it may not be the law very much longer, but it was the law when this man was tried, and, for whatever it may be worth, he is entitled to its protection. Lukowsky and Sternberg, JJ., join in this concurring opinion.