Dawley v. The State, 4 Ind. 128

Perkins, J. Dawley was indicted, jointly with three others, in the Vanderburgh Circuit Court, for larceny in the stealing of a cow. He was tried separately, convicted, and sentenced to the penitentiary. On the trial, one Peltz, who had, at the same term of the Court, been convicted of burglary but not sentenced, and who was charged as an accomplice in the case with Dawley, was made a witness on the part of the state, and testified against Dawley under an assurance that if he disclosed the whole truth he might hope for favor in his own case.

It is objected that Peltz, having been convicted of burglary, was not a competent witness. But judgment and sentence had not passed against him; and it is the judgment of the Court, and not the verdict of the jury, that renders the accused legally infamous, and, hence, incompetent as a witness. It is also urged that his testimony, being that of an accomplice, was not sufficient, uncorroborated, to authorize the jury to find a verdict of guilty. A jury may convict upon the testimony alone of an accomplice. Johnson v. The State, 2 Ind. R. 652.

We regard Peltz's testimony, however, as strongly corroborated in this case. It is further said that the prosecuting attorney refused to enter a nolle prosequi to the indictment against Peltz after he had testified. If such be the fact, it has nothing to do with Dawley's case, and can only be made the ground of an application to the executive for a pardon in that of Peltz. See the United States v. Lee, 4 McLean 103. Per Curiam. The judgment is affirmed with costs.