Lyons

— The prisoners were convicted of murder in the first degree. In support of the prosecution the evidence of one "Wallace, an accomplice, was received. The district judge gave certain written instructions to the jury, and then asked the counsel for the prisoners if they wished any other charge, to which they replied in the negative. After the charge was given, and while the jury were in the act of retiring, the counsel for the prisoners excepted to the instructions given.

It is objected that the judge did not charge the jury that a conviction could “not be had upon testimony of an accomplice by such other evidence as should tend to connect the defendants with the commission of the offense”: Wood’s Dig. 299, sec. 375.

At common law the unsupported testimony of an accomplice was strictly sufficient, but in practice it was usual for the judge to advise the jury to acquit: 1 Phil. Ev. 31; 2 Russ. 960; 1 Dem. 82 ; 22 Pick. 397 ; 3 Brit. C. 0. 54.

But though this was the usual practice, yet it was discretionary with the judge who presided at the trial, and it would not have been error to omit such a charge: 1 Phil. Ev. 32; 3 Brit. C. C. 54; 2 Russ. 960.

It must be conceded, however,…