State v. Hall , 112 Utah 272 ( 1947 )

I concur in the result. If the jury should have been instructed on the law applicable to the testimony of an accomplice, viz., Sec. 105-32-18, U.C.A. 1943, it is a sufficient answer to defendant's contention in that regard that there was no pointing out to the court of the omission to so instruct. Counsel, as an officer of the court, has the duty as a specialist on the case, which he should be, to point out a failure by the court to instruct on a salient material proposition of law. He is a back-stop in that regard. If he does not do so his client cannot afterward complain that the instructions were insufficient or incomplete.

However, I have a doubt as to whether the provisions of Sec. 105-32-18, U.C.A. 1943, should be brought to the attention of the jury. It certainly is for the court to say, in the first instance, whether there is corroborating evidence. If there is, the court will overrule a motion for nonsuit or for a directed verdict. But whether after that the court should instruct the jury, and thus place on it the sometimes difficult task of differentiating corroborating testimony from other testimony, presents to me a serious question. I recognize that a good argument may be made, based on the peculiar wording of the statute, that the jury may believe the accomplice and disbelieve the corroborating testimony and therefore convict only on the testimony of an accomplice. Since the case in this regard turns on the failure to point out to the court by registering an exception a claimed failure to instruct on a material part of the law of the case, I need only signify my doubt as to the other point in order that it will not be assumed that it escaped notice and, more important, that it will not be hereafter argued that by implication this court held that an instruction as to the necessity for corroborating evidence was necessary.