understood. The question is, whether he swore that he was there at all, and the two men swore that they saw him in there at that time." It is not pretended that the jurors in any material respect disobeyed the admonition of the court not to talk about the merits of the case, and this question itself indicates nothing prejudicial to the rights of the defendant. It is simply an inquiry on the part of one of the jurors, and indicates only that there was a misunderstanding as to the testimony of one or more of the witnesses. The inquiry of the juror was answered by stating the testimony to him, to which there was no objection. During the progress of a trial a juror may not hear clearly what has been said, and without impropriety may ask a fellow-juryman whether the testimony is as he understands it. In the absence of something more than the showing that is made here, we must hold that the defendant was not injured. (People v. McCurdy, 68 Cal. 576.)

There was no error in permitting the witness Ward to answer the question, "How did it come up?" The defense had attempted to show by him that the prosecuting witness did not know whether it was West or another person who had committed the assault; and for that purpose had been permitted to show that Weyman had said to him on the morning after the commission of the offense that he (Weyman) did not know whether it was West or a white man. We think it was legitimate crossexamination of the witness to inquire whether, in the conversation had with the same party the evening before, he had not said that it was West who assaulted him.

Judgment and order affirmed.

TEMPLE, J., MCFARLAND, J., SEARLS, C. J., MCKINSTRY, J., THORNTON, J., and SHARPSTEIN, J., concurred.

[No. 20258. In Bank.-September 10, 1887.]

THE PEOPLE, RESPONDENT, v. WILLIAM CLOUGH, APPELLANT.

CRIMINAL LAW-EVIDENCE OF ACCOMPLICE-CORROBORATION OF-INSTRUCTION.—In a prosecution for burglary, the court, after instructing the jury that they could not convict upon the uncorroborated evidence of an accomplice, charged them as follows: "But if you believe that an accomplice has testified in this case, and you believe beyond all reasonable doubt from his testimony, to a moral certainty, that the defendant is guilty of the alleged offense in the information mentioned, and then, in connection therewith, you believe there is evidence outside of that which tends to connect the defendant with the commission of the offense, outside of showing the commission of the offense itself, and the circumstances thereof, then it would be your bounden duty to convict him." Held, that under section 1111 of the Penal Code the instruction was proper.

ID. NATURE OF CORROBORATING EVIDENCE.-Section 1111 of the Penal Code, providing that in order to warrant a conviction on the testimony of an accomplice his evidence must be corroborated, does not require that the corroborating evidence shall be such as shall prove that the accomplice has told the truth; nor does it declare that he must be presumed to have sworn falsely, such presumption to be overcome only in case the other evidence shall show he has told the truth. It simply requires that in addition to his testimony, however trustworthy it may be, there must, to justify a conviction, be evidence tending to connect the defendant with the commission of the offense.

APPEAL from a judgment of the Superior Court of Tulare County, and from an order refusing a new trial.

The facts are stated in the opinion of the court.

Atwell & Bradley, and T. M. McNamara, for Appellant.

Attorney-General Johnson, for Respondent.

MCKINSTRY, J. - The defendant Clough was convicted of burglary of the first degree.

As portion of his charge, the judge of the Superior Court instructed the jury, in the precise language of section 1111 of the Penal Code, as follows:

"A conviction cannot be had on the testimony of an

accomplice, unless he is corroborated by other evidence, which in itself, and without the aid of the testimony of the accomplice, tends to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof "; and in another portion of his charge the learned judge said: "Where a number of persons have been engaged in the commission of an offense, when any one of them turns state's evidence and testifies to the circumstances under which the alleged crime was committed, no one of the parties engaged in the commission of the crime can be convicted upon the testimony of the accomplice, unless there is other evidence outside of his testimony which tends to connect the defendant with the commission of the offense, and the connection is not sufficient if it simply shows the offense or the circumstances of the offense itself."

The language last quoted added no force to the charge previously given in the language of section 1111 of the Penal Code, but we are of opinion that it could not have been understood by the jury as laying down any different rule from that declared in the section referred to. It was, in effect, a statement that to justify a conviction there must be evidence, independent of the testimony of the accomplice, tending to connect the defendant with the commission of the offense, and that such independent evidence was not sufficient if it merely showed the commission of the offense or the circumstances thereof.

After calling the attention of the jury to the distinction between proof of a fact and evidence tending to prove it, the learned judge proceeded: "Whenever the prosecution introduces evidence which tends to connect the defendant with the commission of the given offense, then the jury may take into consideration, and should do so, the evidence of the accomplice, for the purpose of determining whether or not the defendant is guilty of the given offense; but this evidence, which tends to prove the connection of

the defendant with the commission of th alleged offense, must be evidence upon propositions other than those showing the fact of the offense itself committed, and the circumstances thereof."

The judge then told the jury, in substance, that even if they should believe beyond a reasonable doubt, from the testimony of the accomplice, that the defendant was guilty, yet if there was no other independent evidence tending to connect the defendant with the commission of the offense, it was their bounden duty to acquit him. And immediately afterwards the judge said: "But if you

believe that an accomplice has testified in this case, and you believe, beyond all reasonable doubt, from his testimony, to a moral certainty, that the defendant is guilty of the alleged offense in the information mentioned, and then, in connection therewith, you believe there is evidence outside of that which tends to connect the defendant with the commission of the offense, outside of showing the commission of the offense itself, and the circumstances thereof, then it would be your bounden duty to convict him."

We do not think the repetition of the word "outside" in the foregoing citation could have misled. As first used, it was evidently intended to exclude the testimony of the accomplice, and to require the corroborating evidence to consist of matter substantiated otherwise than by such testimony.

The instruction last cited is excepted to by appellant, on the ground that "it invades the province of the jury, and sets aside the provisions of section 1111 of the Penal Code, because that section does not make it incumbent upon the jury to convict upon the evidence of an accomplice, although it may be corroborated in some slight respects."

And it was said in argument: "The jury is to be the judge of the evidence, and to say to the jury that it must convict a defendant upon any corroboration of the testi

mony of an accomplice is to say that which no court in this state has a right to say."

But the court did not tell the jury that it was their bounden duty to convict the defendant if there was any evidence tending to corroborate the accomplice; but in effect, if they believed the testimony of the accomplice, and that testimony proved defendant's guilt beyond reasonable doubt, they should convict, provided there was evidence, independent of such testimony, which "tended" to connect the defendant with the offense. The statute does not make it necessary that the evidence bearing upon the corroborative fact shall prove the ultimate fact beyond all reasonable doubt. "The corroborating evidence may be slight; nevertheless the requirements of the statute are fulfilled if there be any corroborating evidence which of itself tends to connect the accused with the commission of the offense." (People v. Melvane, 39

Cal. 616.)

The point in opposition to the instruction may be stated thus:

A jury has no legal right to believe the testimony of an accomplice unless he is corroborated in the manner prescribed in the Penal Code; they can only convict upon the testimony of the accomplice and its corroborations; in other words, in case the independent circumstances tending to connect the defendant with the alleged offense do not establish his guilt beyond a reasonable doubt, they must of themselves persuade and lead to a belief of the accomplice's testimony. It might be contended that the instruction was erroneous because some evidence tending to corroborate might not corroborate the testimony of the accomplice and render it credible; and thus the accomplice's testimony and the slight evidence of corroboration might fail to establish the defendant's guilt to a moral certainty.

But section 1111 of the Penal Code does not require that the corroborating evidence shall be such as shall prove