MR. JUSTICE BREWER, after stating the case, delivered the opinion of the court.
The assignments of error question the correctness of the instructions given to the jury, first, on the subject of a constructive, as distinguished from an actual, presence at the
Although the indictment charged Johnson with actual presence and participation in the felonious act, yet the evidence disclosed that the fatal wound was inflicted by Woodard, and that Johnson, though near by, did not show himself till after the murder had been accomplished. This state of facts rendered it proper for the court to instruct the jury as to the legal effect of such evidence. This it did, at some length, with illustrations drawn from well-known cases. We are unable to see any misstatement of the law in the instructions given in this respect.
There was nothing in the evidence disclosing previous hostility to the deceased on the part of Johnson, or any reason or motive for the murderous attack. Thereupon the defendant's counsel asked an instruction that where the evidence shows that the defendant did not commit the actual killing, and when it is uncertain whether he did participate in it, then the jury may regard the absence of any proof of motive for the killing in finding their verdict. This instruction the court gave, but added to it the observation that the absence or presence of motive is not a necessary requisite to enable the jury to find the guilt of a party, because it is frequently impossible for the government to find a motive.
In thus qualifying the instruction the learned judge committed no error. The jury were, in effect, told that they had right to consider the absence of any proof of motive, but that such proof was not essential to enable them to convict.
Complaint is made of the instruction as to the weight to be given to the defendant's personal testimony. That instruction was in the following terms: "The defendant goes upon the stand before you and he makes his statement; tells his story. Above all thins in a case of this kind you are to see whether that statement is corroborated substantially and reliably by the proven facts; if so, it is strengthened to the extent of its corroboration. If it is not strengthened in that way you are
This instruction must be taken in connection with about a page of the charge which immediately preceded it, in which the court laid down certain general rules for weighing the evidence of any witness, naming among them his bearing and conduct in the presence of the jury, his manner in giving his testimony, the character of the story told by him, its harmony or contradiction with other testimony, the opportunities the witness had for knowing the facts of which he testifies, and the motive, by reason of interest or feeling, which may influence him, saying in conclusion that "if the interest is a very great one, if it is a very large one, it is more apt that he would be swayed — it might be unconsciously — away from the truth than if such interest did not confront him. You are simply to weigh that evidence in connection with the statements of the other witnesses in the case, whether it is the defendant or anybody else." After these general observations follows the particular language which is objected to, but in view of that which preceded, it cannot be said that, by it, the defendant was deprived of any advantage to which he was justly entitled in having his personal statement considered by the jury. If such statement was corroborated by facts otherwise proved it was thereby strengthened; if it was not so corroborated it was still to be considered in and of itself, and in the light of "its own inherent proving power." Reagan v. United States ante, 301.
The learned judge has included in the bill of exceptions the evidence in the case, and we have carefully read it in connection with the portions of the charge and instructions excepted to.
The impression has been made upon us, by our examination of the evidence, that there was room for a reasonable doubt of the defendant's guilt. But the jury that found him guilty saw and heard the witnesses, and we must infer from the conduct of the court in overruling the motion for a new trial that it was satisfied with the verdict; and as we have found no error in the rulings of the court, the judgment in the case is