of New York has given the following as a test: "To constitute an accessory, it is not sufficient to assist the person to elude punishment, because failing to prosecute or preventing the attendance of witnesses would produce that result. But to constitute the offense, one must help the principal to elude, or evade, capture."45 § 2785. Accessory and accomplice-Distinction.-The terms accessory and accomplice are sometimes used interchangeably and one term is often used as synonymous with the other. But the majority of the cases makes a very clear distinction between them. It is true that an accessory before the fact may always be said in a sense to be an accomplice; but an accomplice is not always an accessory. The definition given by one court is as follows: "An accomplice is defined to be a person, who knowingly, voluntarily and with common intent with the principal offender, unites in the commission of a crime." According to some decisions and some law writers an accomplice is a principal in the first degree and may be indicted and punished in the same manner as the principal.*7 Other courts say that an accomplice is "an associate in crime; a partner or partaker in guilt." The term is frequently used to include all participants in a crime whether as principals or accessories. But other courts and writers define accomplice as one who in any manner participates in the criminality of an act, whether as a principal in the first or second degree, or as an accessory before or after the fact.50 According to 47 9948 "People v. Dunn, 7 N. Y. Cr. 173, peth v. State, 50 Ark. 544, 9 S. W. 6 N. Y. S. 805. "Clapp v. State, 94 Tenn. 186, 30 S. W. 214; State v. Roberts, 15 Ore. 187, 13 Pac. 896; State v. Light, 17 Ore. 358, 21 Pac. 132; State v. Carr, 28 Ore. 389, 42 Pac. 215; State v. Kuhlman, 152 Mo. 102, 53 S. W. 416; People v. Bolanger, 71 Cal. 17, 11 Pac. 799; 1 Wharton Cr. Ev., § 440. State v. Umble, 115 Mo. 452; 22 S. W. 378; State v. Kuhlman, 152 Mo. 102, 53 S. W. 416. "Davidson v. State, 33 Ala. 350; State v. Light, 17 Ore. 358, 21 Pac. 132. "Davidson v. State, 33 Ala. 350; Polk v. State, 36 Ark. 117; Huds 1; People v. Kraker, 72 Cal. 459, 14 Pac. 196; Cross v. People, 47 Ill. 152; Johnson v. State, 2 Ind. 652; State v. Henderson, 84 Iowa 61, 50 N. W. 758; State v. Quinlan, 40 Minn. 55, 41 N. W. 299; Linsday v. People, 63 N. Y. 143, 153; State v. Odell, 8 Ore. 30, 33; Harris v. State, 7 Lea (Tenn.) 124; Barrara v. State, 42 Tex. 260, 263; House v. State, 16 Tex. App. 25; Zollicoffer v. State, 16 Tex. App. 312; Harrison v. State, 17 Tex. App. 442. the rule established in Texas an accomplice is virtually an accessory before the fact.51 An accomplice is one who is associated with others in the commission of a crime, all being principals, although the term is sometimes used to include all the participants in a crime, whether as principals or accessories.52 It has been expressly held that an accessory after the fact was not an accomplice within the meaning of the law.58 § 2786. Evidence of accomplice-Corroboration.-The statutes in almost all the states now require that a person accused of a crime cannot be convicted on the evidence of the accomplice alone. The rule as generally stated is that to authorize the conviction of the accused on the testimony of an accomplice, such testimony must be corroborated by other evidence tending to connect the accused with the commission of the crime.54 But it is held that the corroborative 51 Cook v. State, 14 Tex. App. 96; Ogle v. State, 16 Tex. App. 361; Smith v. State, 21 Tex. App. 107, 17 S. W. 552; West v. State, 28 Tex. App. 1, 11 S. W. 635; Rix v. State, 33 Tex. Cr. App. 353; 26 S. W. 505; Dawson v. State, 38 Tex. Cr. App. 50, 41 S. W. 599; Bean v. State, 17 Tex. Cr. App. 60; Mitchell v. State, 44 Tex. Cr. App. 228, 70 S. W. 208. 52 Harris v. State, 7 Lea (Tenn.) 124. 53 State v. Umble, 115 Mo. 452, 22 S. W. 378; State v. Kuhlman, 152 Mo. 102, 53 S. W. 416; People v. Chadwick, 7 Utah 134, 25 Pac. 737; Lowery v. State, 72 Ga. 649; Allen v. State, 74 Ga. 769. 54 Lumpkin v. State, 68 Ala. 56; Burney v. State, 87 Ala. 80, 6 So. 391; Malachi v. State, 89 Ala. 134, 8 So. 104; Territory v. Neligh, (Ariz.) 10 Pac. 367; Fort v. State, 52 Ark. 180, 11 S. W. 959; People v. Ames, 39 Cal. 403; People v. Melvane, 39 Cal. 614; People v. Clough, 73 Cal. 348, 15 Pac. 5; People v. Smith, 98 Cal. 218, 33 Pac. 58; People v. Larson, (Cal.) 34 Pac. 514; People v. Strybe, (Cal.) 36 Pac. 3; Childers v. State, 52 Ga. 105; Middleton v. State, 52 Ga. 527; Chapman v. State, 112 Ga. 56, 37 S. E. 102; Johnson v. State, 65 Ind. 269; Archer v. State, 106 Ind. 426, 7 N. E. 225; State v. Schlagel, 19 Iowa 169; State v. Dietz, 67 Iowa 220, 25 N. W. 141; State v. Van Winkle, 80 Iowa 15, 45 N. W. 388; Bowling v. Commonwealth, 79 Ky. 604; Craft V. Commonwealth, 80 Ky. 349; Smith v. Commonwealth, 13 Ky. L. R. 369, 17 S. W. 182; State v. Brin, 30 Minn. 522, 16 N. W. 406; State v. Clements, 82 Minn. 434, 85 N. W. 229; People v. O'Neil, 109 N. Y. 251, 16 N. E. 68; People v. Ogle, 104 N. Y. 511, 11 N. E. 53; People v. Williams, 29 Hun (N. Y.) 520, 522; People v. Plath, 100 N. Y. 590, 3 N. E. 790; People v. Butler, 62. App. Div. (N. Y.) 508, 71 N. Y. S. 129; People v. Bosworth, 64 Hun (N. Y.) 72, 19 N. Y. S. 114; State v. Hicks, 6 S. Dak. 325, 60 N. W. 66; State v. Kent, (S. Dak.) 62 N. W. 631; State v. Jarvis, 18 Ore. 360, 23 Pac. 251; Cox v. Commonwealth, 125 Pa. St. 94, 17 Atl. 227; Lopez v. State, 34 Tex. 133; Bybee v. State, 36 Tex. 366; 55 56 proof need not of itself be sufficiently strong as to warrant a conviction. It has also been held that the corroborating testimony need not be true beyond a reasonable doubt. It has been held to be sufficient if the accomplice is corroborated as to such facts as go to the identity of the accused in connection with the crime; in other words, the rule does not require more than that the accomplice be corroborated as to the facts which tend to connect him with the crime.57 The rule requiring the corroborating evidence to connect the accused with the commission of the crime is not sufficiently complied with where the accomplice is corroborated as to time, place and circumstances of the transaction, but when the evidence in no way connects the accused therewith.58 So it has been held to be sufficient if the accomplice is corroborated by other evidence as to any material point.59 And it has been regarded as sufficient where the evidence of the accomplice is corroborated by proof of a confession by the accused.6° However, this requirement is not carried to the extent of holding that the evidence must absolutely connect the defendant with the crime; but it has been held to be sufficient if it fairly tends to connect him with the perpetration of the offense, or that he was implicated in it. And it is held to be the rule that the testimony of one Barrara v. State, 42 Tex. 260; Wright v. State, 43 Tex. 170; Lockhart v. State, 29 Tex. App. 35, 13 S. W. 1012; Sanders v. State, (Tex.) 29 S. W. 777; McNeally v. State, 5 Wyo. 59, 36 Pac. 824; United States v. Kershaw, 5 Utah 618, 19 Pac. 194; State v. Koplan, 167 Mo. 298, 66 S. W. 967; State v. Stevenson, 26 Mont. 332, 67 Pac. 1001; an interesting but not important history of the progress and development of the law of the corroboration of an accomplice is found in Wigmore Ev., § 2056. "Smith v. State, 59 Ala. 104; Lumpkin v. State, 68 Ala. 56; People v. Bosworth, 64 Hun (N. Y.) 72, 19 N. Y. S. 114. 24 S. W. 885; People v. Courtney, 28 Hun (N. Y.) 589. 58 Childers v. State, 52 Ga. 106; State v. Hicks, 6 S. Dak. 325, 60 N. W. 66. "People v. Ardell, 135 Cal. 19, 66 Pac. 970; State v. Jones, 115 Iowa 113, 88 N. W. 196; State v. Schlagel, 19 Iowa 169; People v. Hooghkerk, 96 N. Y. 149; People v. Bosworth, 64 Hun (N. Y.) 72, 19 N. Y. S. 114. o Patterson v. Commonwealth, 86 Ky. 313, 5 S. W. 387; Snoddy v. State, 75 Ala. 23; Schaefer v. State, 93 Ga. 177, 18 S. E. 552. 61 People v. Everhardt, 104 N. Y. 591, 11 N. E. 62; People v. Elliott, 106 N. Y. 292, 12 N. E. 602; People v. Elliott, 5 N. Y. Cr. 204; People v. "Vaughan v. State, 58 Ark. 353, Bosworth, 64 Hun (N. Y.) 72, 19 24 S. W. 885. N. Y. S. 114; Commonwealth v. "Vaughan v. State, 58 Ark. 353, Holmes, 127 Mass. 424; State v. McLain, 159 Mo. 340, 60 S. W. 736. accomplice cannot support that of another.62 The rule that the evidence of one accomplice cannot corroborate that of another does not apply where such corroborative evidence is by an accomplice in a separate and distinct crime or in a different crime of the same kind.63 So it has been held to be corroborative evidence for the consideration of the jury where the accused failed to contradict the accomplice, where such contradictory evidence was within the power of the accused. 64 § 2787. Evidence of accessory-Corroboration.-The question has arisen as to whether or not an accessory after the fact is an accomplice with the principal. And as a resultant of this the further question has arisen as to whether or not the rule requiring proof corroborating the evidence of an accomplice applies to an accessory after the fact. It is held in some jurisdictions under their statutes that an accessory after the fact cannot be indicted and tried as a principal and therefore the accessory after the fact is not an accomplice.65 It is quite generally held that an accessory after the fact is not an accomplice under certain statutes and within the meaning of the rule that requires the corroboration of the testimony of an accomplice. So the rule requiring corroboration does not apply to a feigned accomplice.“7 62 Johnson V. State, 4 Greene (Iowa) 65; State v. Williamson, 42 Conn. 261; Porter V. Commonwealth, 22 Ky. L. R. 1657, 61 S. W. 16; Powers v. Commonwealth, 22 Ky. L. R. 1807, 61 S. W. 735. 63 People v. Sternberg, 111 Cal. 3, 43 Pac. 198. 64 People v. Dyle, 21 N. Y. 578; Gordon v. People, 33 N. Y. 501; Ormsby v. People, 53 N. Y. 472; People v. Ryland, 97 N. Y. 126; Whitney v. Ticonderoga, 127 N. Y. 40, 27 N. E. 403. 65 Lowery v. State, 72 Ga. 549; Allen v. State, 74 Ga. 769; Commonwealth v. Wood, 11 Gray (Mass.) 85; Commonwealth v. Boynton, 116 66 Mass. 343; State v. Kuhlman, 152 66 Lowery v. State, 72 Ga. 649; Allen v. State, 74 Ga. 769; People v. Barric, 49 Cal. 342; State v. Hayden, 45 Iowa 11; State v. Baden, 37 Minn. 212, 34 N. W. 24; State v. Quinlan, 40 Minn. 55, 41 N. W. 299; State v. Umble, 115 Mo. 452, 22 S. W. 378; State v. Kuhlman, 152 Mo. 100, 53 S. W. 416; Harris v. State, 7 Lea (Tenn.) 124; People v. Chadwick, 7 Utah 134, 25 Pac. 737. 67 People v. Farrell, 30 Cal. 316; People v. Bolanger, 71 Cal. 17, 11 Pac. 799; Commonwealth v. Willard, 22 Pick. (Mass.) 476; Commonwealth v. Downing, 4 Gray (Mass.) 29; 1 Greenleaf Ev., § 382. § 2788. Generally. The chapter on this subject can only be general. An exhaustive treatment of the proof required to establish the crime of adultery or fornication is scarcely practicable. The crime is not only governed but is also usually defined by the local statutes of the several states, and these are by no means uniform. The simple act of adultery or fornication was not punishable as a crime by the common law. But this rule of the common law has been changed in many of the states of the United States. Under some of the local statutes any act of illicit sexual intercourse, whether adultery or fornication, is punishable as a misdemeanor or a crime. By the statutes of other states the adultery or fornication must be in connection with a living together or a cohabitation by the parties. On account of the difference in the statutes of the various states there is found a great contrariety as well as apparent conflict in the adjudicated cases of the several states. Hence in order to reconcile the decisions it is necessary to examine the special statutes under which they are made. § 2789. Scope of chapter.-The fact or act of illicit intercourse is required to be proved in a variety of cases, such as divorce, seduction, criminal seduction, abduction, adultery and perhaps some |