[Matthews v. The State.] felonies, the prisoner's confession, when the corpus delicti is not proved by independent testimony, is insufficient for his conviction, but accords with the solid principles of reason, and the caution which should be applied in the admission and estimate of this species of evidence." The question has been very fully examined and considered several times by the Supreme Court of Missouri, the latest case being State v. German, 54 Mo. 526 (S. C., 14 Am. Rep. 481); and it seems uniformly to have been held, that a conviction on the extrajudicial confession of the prisoner, not corroborated by proof of the corpus delicti, is unwarranted. Passing over cases of homicide, the case of Robinson v. State, 12 Mo., was an indictment for larceny; the confession was voluntary, and full, in the presence of the person whose money was alleged to have been stolen, but who did not appear as a witness on the trial. The confession, without proof aliunde of the corpus delicti, was pronounced insufficient to support a conviction. The case of State v. Scott, 39 Mo. 424, was an indictment for robbery, and the same principle was announced. Without pursuing further a citation of the authorities in this country, it is enough to say, they generally concur in affirming that the extra-judicial confessions of the prisoner, not corroborated by independent proof of the corpus delicti, will not justify a conviction for felony. We limit the statement to a conviction for felony, because that is the character of the case we are considering, without intimating any opinion as to the application of the principle to misdemeanors. Nor must we be understood as affirming that the proof of the corpus delicti must be as full and conclusive as would be essential if there was no confession to corroborate it.-Commonwealth v. McCann, 97 Mass. 580; Same v. Tarr, 4 Allen, 315; U. S. v. Williams, 1 Cliff. 53; People v. Badgley, supra; Bergen v. People, supra. Evidence of facts and circumstances, attending the particular offense, and usually attending the commission of similar offenses-or of facts to the discovery of which the confession has led, and which would not probably have existed if the offense had not been committed-or of facts having a just tendency to lead the mind to the conclusion that the offense has been committed-would be admissible to corroborate the confession. The weight which would be accorded them, when connected with the confession, the jury must determine, under proper instructions from the court. The evidence against the prisoner is not of an express confession-it is of an admission to be implied from the character of his responses to communications made to him, of the accusations made by the female on whom the violence is charged to have been committed, and from. his failure to [Matthews v. The State.] meet these accusations with a prompt and explicit denial. The woman is in life, and was, for months after the offense was committed, a resident of the same neighborhood and county with the prisoner. Neither she nor her relatives are shown to have been active in this prosecution. When the trial was had in the Circuit Court, she was residing in another State; but it is not intimated that the prisoner had any agency in producing her change of residence. After the offense, the prisoner was received on friendly terms in her father's family, and by other of her relatives. The admissions to be implied against the prisoner from his silence, and the character of his answers, are of a species of evidence which ought always to be received and acted on with great caution. Its admissibility rests on the probability that a man will repel by denial an unjust, unfounded accusationthat such is the instinct of our nature; and therefore silence, or a response which is not a denial, is a tacit admission of the truth of the accusation. Much depends, of necessity, on the time, place, and manner, in which the accusation is made, or the information of it conveyed, and the person from whom it proceeds, and on the peculiar temperament and characteristics of the person accused. One of perfect innocence may be abashed and humiliated to silence by the accusation of crime, while another, hardened by guilt, would answer with a vehement and seemingly indignant denial. The expressions imputed to the prisoner are of doubtful import, and are not inconsistent with his innocence of the crime charged, though he may have been guilty of gross and shameful impropriety of conduct. Considering all the evidence, we can not believe a conviction resting on it ought to stand. There was evidence (if the offense was committed) when the prosecution was commenced, the State could have procured, which would have been positive and convincing of the corpus delicti, and of the prisoner's guilty agency. It ought to have been produced; and it is better that a guilty man should escape, than that a precedent should be introduced, which may press hardly hereafter on the innocent. The motion to exclude the evidence of the witnesses Street and Tomerline ought to have been sustained. For the error in overruling it, the judgment must be reversed, and the cause remanded. The prisoner will remain in custody, until discharged by due course of law. [Pond v. The State.] Pond v. The State. Indictment for Burglary. 1. Sufficiency of indictment.-An indictment which charges that the defendant "broke into and entered the store-honse of R. D., with the intent to steal, where there was, at the time of such breaking and entering into said storehouse, goods, merchandise, or other valuable things, was kept for use," &c., though expressed in careless and ungrammatical language, is sufficient on demurrer. 2. Proof of confession, or conversation, by witness who remembers part only. — When a witness, testifying to a conversation or confession, admits that he can not recollect all that was said at the time, this is no reason for rejecting his testimony entirely. 3. Proof of venue after evidence has closed.It is discretionary with the court below to permit a witness to be recalled, for the purpose of proving the venue, after the evidence has closed, and during the argument to the jury. FROM the Circuit Court of Elmore, on change of venue from Coosa. Tried before the Hon. JAMES Q. SMITH. The indictment in this case was in these words: "The grand jury of said county charge, that before the finding of this indictment, that George Pond broke into and entered the store-house of Robert Davidson, with the intent to steal, where there was, at the time of such breaking and entering into said store-house, goods, merchandise, or other valuable things, was kept for use, sale, or deposit; against the peace,' etc. The defendant demurred to the indictment, "on the ground that it fails to aver that there was goods, merchandise, or other valuable thing kept for use, sale, or deposit, in said store-house at the time of the breaking and entering.' The court overruled the demurrer, and the defendant then pleaded not guilty. "On the trial," as the bill of exceptions states, "the State introduced Robert Davidson as a witness, who testified, that his store-house had been broken open, and some whiskey, ten or twelve dollars in nickels, some silver, and a pair of shoes, taken from said store-house. The solicitor then asked said witness, if he had heard the defendant say anything about the goods that were taken out of his store; to which the witness answered, that the defendant said that some shoes that were in court, and which were found in defendant's possession, were the shoes that were taken out of his house. The witness was then asked, by the defendant's attorney, if that was all the conversation; to which he re [Pond v. The State.] plied, that he did not know-it was his opinion it was not. The witness was then asked, if the defendant did not, in the same conversation, say that he received the shoes from another person, who had broken and entered the store; to which he answered, that he believed this was said, but he did not remember the exact words used by the defendant in addition to the evidence above set forth. The defendant thereupon asked the court to exclude from the jury so much of the testimony of said witness as related to the confession of the defendant, on the ground that the witness could not state the whole of the conversation; which motion the court overruled, and the defendant excepted. "After the evidence had been closed, and the case opened by the solicitor, and while the defendant's attorney was addressing the jury, a question arose, as to whether the venue in the case was proved; the defendant's counsel stating that it was not, and the solicitor insisting that it was proved by the witness Davidson. The solicitor then offered said Davidson to restate what he had before stated as to the venue; to which the defendant objected, because the case had been closed and submitted to the jury; but the court overruled the defendant's objection, and allowed the witness to be asked, if he had not, on his examination in chief, stated where the offense was committed. The witness stated, that he did in reply to the question of the solicitor, and that he said it was at Rockford, in Coosa county; to which the defendant duly excepted." S. J. DARBY, for the defendant. JNO. W. A. SANFORD, Attorney-General, for the State. MANNING, J.-The form of accusation for the offense with which defendant is charged in this case is plainly indicated in the Code; and, though the indictment contained in this record is negligent and ungrammatical, in language and construction, we cannot impute to it a different meaning from that conveyed in the form prescribed by law. It being charged that the defendant had broken into and entered the store-house specified, the word "where" must be understood, in that connection, as equivalent to the statutory words "in which." There was not error in overruling the demurrer. 2. The objection to the statement by witness Davidson of his conversation with defendant was properly overruled. Because the witness testified that he could not undertake to repeat all that was said by the accused, is not a sufficient reason for refusing to receive what he could remember. A 55 198 107 64 [Wetmore v. The State.] witness who should deny recollection of what he knew was said, would be as much guilty of perjury, as if he willfully misstated what he professed to have heard defendant say. The jury can generally determine, by the answers upon crossexamination, and other evidence in the cause, as well as by what a witness may say on examination in chief, how much value ought to be attributed to his testimony.-Bob v. The State, 32 Ala. 360. 3. The circuit judge did not err in permitting a witness to be recalled, to prove what he had said about the venue of the offense charged. To prove the venue, he might allow a witness to come in after the examination had closed, though no such testimony had been given. The judge presides to see that justice be done to both parties; and in reference to such a particular as the venue, the mere place at which an offense is supposed to have been committed, he ought generally himself to see to it that it be proved when the evidence for the State is given in. We find no error in the record, and the judgment is affirmed. Wetmore v. The State. Indictment for Gaming. 1. Games "played with dice.”—Backgammon, as usually played, though dice are employed, is not a "game played with dice" within the prohibition of the statute against gaming (Rev. Code, § 3620). 2. Rule of construction of statutes.-Contemporary construction, and official usage for a long period of time, by the persons charged with the administration of the law, are among the legitimate aids in the interpretation of statutes. FROM from the Circuit Court of Sumter. Tried before the Hon. LUTHER R. SMITH. The defendant in this case was indicted under the statute against gaming (Rev. Code, § 3620), the indictment being in the general form authorized by law; and he was convicted, under the charge of the court, on proof that he had, within the time covered by the indictment, played a game of backgammon at a railway station in the county. The charge of the court, to which an exception was reserved, is now assigned as error. R. CHAPMAN, Jr., W. G. LITTLE, Jr., and SNEDICOR & COCKRELL, for the defendant. |