Calba Sumpter vs. The State of Florida, 11 Fla. 247

DOUGLAS, J., delivered the opinion of the Court, This is an application for a writ of error to the judgement of the Circuit Court of Columbia county. The plaintiff in error, Calba Sumpter, was indicted and tried at the Fall Term of the Circuit Court for the County of Columbia, Suwannee Circuit, on the charge of administering poison to Cyrus McLemore and his family, consisting of several persons.

The bill of exceptions shows, that on the trial the Solicitor for the State, to prove the guilt of the prisoner, offered the testimony of Ileetor Thorn, an accomplice in the offeree charge, but against whom no bill of indictment had been found. The evidence, as set out in the bill of exceptions, also shows, that the poison was placed in a pot, with some food designed for the use of McLemore and his family, but that it was not taken by them, having been discovered in time to prevent the consumption of the meat in the pot.

Upon the proof, the prisoner was convicted by the jury, and sentenced by the court to suffer the extreme penalties of the law. The prisoner applied for and obtained a writ of error, and now assigns as reasons for the reversal of the judgment and sentence against Mm— First. That the court below erred in admitting the testimony of Hector Thorn, an accomplice. Second.

That the court erred in deciding that the putting of poison in the pot, with the food designed for the use of McLemore and family, though they did not take it into the stomach, was an administering of poison within the meaning of the act of the General Assembly, which declares: “ That if any person shall administer poison to another, with intent to deprive him or her of life, he, she and their aiders and abettors, shall be deemed to be guilty of a felony, and upon conviction thereof, shall suffer death.” The question, whether an accomplice in a crime be a competent witness, has doubtless frequently arisen on the cir-: cuits, but has never been decided by this court, and is now before it for the first time, and, like all other questions of evidence, depends on the well-settled and long established principles of law on this subject.

Tlie rule of evidence, as laid down by Lawrence, Judge, in the case of Jordaine vs. Lashbrooke, 7 Term Rep., 601, is, that “ all persons are admissible witnesses who have the use of their reason, and such religious belief as to feel the obligation of an oath, who have not been convicted of any infamous crime, and-are not influenced by interest.” It is not enough that a person may have committed an infamous crime, and that he may have confessed it.

These facts may serve to destroy his credibility before a court and jury, and may render his testimony of little avail in the estimation of the latter, who are the exclusive judges of it; but the rules of law will not, on this account, authorize the court to exclude him from giving his testimony. It will be seen from the above rule, which is believed to be the well-established law on the subject, that a particeps in the very crime with which the prisoner is charged is competent to prove the guilt of the prisoner, and this position is sustained by ample and weighty authority. In the case of Rex vs.

Jones, Lord Ellenborough said: “No one can seriously doubt that a conviction is legal, though it proceed upon the evidence of an accomplice. Judges, in their discretion, may advise a jury not to believe an accomplice, unless he is confirmed, or only in so far as he is confirmed ; but if he is believed, his testimony is unquestionably sufficient to establish the facts which he deposes.

It is allowed that he is a competent witness, and the consequence is inevitable, that if credit is given to his evidence, it requires-no confirmation from another witness.” In Atwood’s case, Seventh Crown Cases, 531, the twelve Judges were unanimously, of the opinion, that the conviction of four prisoners;, one of whom had been convicted on the uncorroborated evidence of an accomplice, was legal, and upon that opinion the four prisoners suffered the sentence of the law. Hawkins, in Book 2, oh, -16,

section 18, says:. “It has been long settled, that it is no exception against a witness that he hath confessed himself guilty of the same crime, if lie have not been indicted for it; for if no accomplices were to be admitted as witnesses, it would be generally impossible, to find evidence to convict the greatest offenders.

Also, it hath been often ruled that accomplices, who are indicted, are good witnesses for the King until they he convicted.” It is now well established, that the party must be convicted before he is rendered incompetent as a witness, and this upon the general principles of law, as laid down in the leading case of Jordaine vs. Laslibrooke. In support of the principle, that accomplices are competent witnesses, see the cases of Hyde, 1 Hales, P. C. 303 : Robbin’s case, 1 Leach, 464 ; Durham & Crowder’s case. 1 Leach, 478; 2 Camp. Rep., 133.

These authorities abundantly show, that the Judge in the court below decided according to law in admitting the testimony of Hector Thorn, an accomplice. It was contended in the argument before this court, that the admissibility of an accomplice depends on the ancient doctrine of approvement; and as the act of the General Assembly, passed November 19th, 1828, Thomp. Dig., 524, provides that “approvers shall never be admitted in any case whatever,” the competency of the testimony of accomplices is thereby forbidden.

It is a mistake to suppose that the competency of accomplices depends on or grew out of the doctrine of approvement. An approver is one who, being indicted for treason or felony, and when arraigned, confesses the fact before he pleads, and accuses others, his accomplices, in order to obtain his pardon. If he support his accusation in all respects, and the person or persons so accused by him be found guilty, the approver is entitled to his pardon ; but if the accused person is acquitted, the approver receives judgment to he hung, upon his own confession. 4 Black. Com., 329 ; Rudd’s ease, 1 Leach, 115.

An accomplice, who voluntarily gives liis evidence, is not thereby discharged from punishment, nor is he entitled to a pardon if he succeeds in convicting a fellow-prisoner, nor subjected to punishment in consequence •of his failure, hike all others charged with crime, his acquittal or his conviction depends on the legal evidence produced against him on his trial, liis competency as a witness depends on the ancient principles of the common law, before adverted to, in the case of Jordaine vs.

Lashbrooke, that no person is to be excluded as a witness from giving evidence on account of iaiamy, unless he has been convicted ■of any infamous crime. The question of infamy and moral depravity goes to his credibility, not to his competency. The second error assigned was, that the court erred in deciding that the putting of poison in the pot, with the food designed for the use of McLetnore and his family, though they did not take it into the stomach, was an administering of poison, within the meaning oi the act of the General Assembly.

This statute 1ms never received judicial construction by this court; yet one like it, in many respects, has been interpreted by the English Courts, and their

interpretation will greatly aid in corning to a conclusion as to the proper construction of our own. The statute of 9 Geo. IY, eh. 31,

section 11, enacts, “That if any person unlawfully and maliciously shall administer, or attempt to administer, to any person, or shall cause to be taken by any person, any poison or other destructive things, every such offender shall, upon conviction, fee deemed guilty of a felony, and shall suffer death.” It will be seen that the English statute is more extensive than our own ; that it makes not only the administering of poison a felony, but also the attempt to administer poison a felony, punishable with death, while our act only punishes the actual administering of poison a.- a crime, In a case which arose under the English statute, it was decided that to constitute the act of administering the poison, it was not absolutely necessary there should have been a delivery of the poison to the person poisoned, but that if she took it from a place where it had been put for her by the prisoner, and any part of it went into her stomach, it was an administering within the meaning of the statute.

See Rex vs. Hannah Harley, 4 Carrington and Payne, 369. So also in the case of Rex vs. Cadman, 1 Moody’s C. C., 114, the Judges were unanimously of opinion that the poison had not been administered, because it had not been taken into the stomach, but only into the month. From these cases it will be seen, that although the English statute punishes the attempt to administer poison, yet the courts hold that to constitute the offence, the poison must enter into the stomach.

In the case under consideration, the poison was put into a pot with the food intended for the consumption of McLemore and his family, and was discovered before any part had been taken into the stomach. On the authority of the above cited cases, there was not such an administering of poison as to constitute the offence provided for in the statute. The second exception is well taken; the case must be reversed, and á “ venire facias da novon awarded.