Act for the regulation of county jails, etc. CHAPTER III. ACTS REPEALED. SECTION 1. The following acts and parts of acts are hereby repealed: 1. The act of March 13, 1843, entitled "an act for the regulation of county jails." (S. & C. 745.) 2. The act of April 20. 1852, entitled "an act regulating the use of jails of adjoining counties." (S. & C. 748.) 3. The act of March 26, 1860, entitled "an act to provide for the confinement of prisoners under the laws of the United States, in the jails of this state, and to repeal certain acts therein named." (S. & C. 749.) 4. Sections four, five, six, seven, of the act of February 25, 1824, entitled "an act defining the duties of sheriffs and coroners in certain cases." (S. & C. 1397, §§ 4, 5, 6, 7.) 5. The act of March 28, 1864, entitled "an act to amend section one of an act entitled 'an act supplementary to the act for the regulation of county jails,' passed March 13, 1843, passed March 16, 1860." (Sayler, chap. 516.) 6. The act of March 16, 1876, entitled "an act to regulate and govern the Ohio penitentiary, and to repeal certain acts therein named." (73 v. 34.) SEC. 2. This act shall take effect from and after July 1, 1877. C. H. GROSVENOR, Speaker of the House of Representatives. H. W. CURTISS, Passed May 5, 1877. President of the Senate. Accessory-Accomplice. CRIMINAL EVIDENCE. ACCESSORY— SEE ACCOMPLICE. ACCOMPLICE Acts and declarations of accomplice; when admissible.—The acts and declarations of a conspirator may, after sufficient proof of conspiracy, be given in evidence to charge his fellow-conspirator; but subject always to the limitation that the acts and declarations admitted be those only which were made and done during the pendency of the criminal enterprise, and in furtherance of the common object. Where the declarations are merely a narrative of a past occurrence, they can not be received as evidence of such occurrence. They must be concomitant with the principal act, and connected with it, so as to constitute a part of the res gesta; for, while engaged in accomplishing the common design, each is deemed the agent of all, and his acts and declarations are those of all. (Patton v. State, 6 Ohio St. 467.) Where two or more persons are proved to have been associated together for an illegal purpose, an act or declaration of one of the parties, in furtherance of the common objects, and while engaged in the prosecution of the general design, may be given in evidence against his associates. But the declarations of a party, made in his own behalf, and detailing what he personally intends to do, but not in furtherance of any concerted action with others, are not admissible as evidence against an associate in crime, although he and such associate may afterward engage in, and be indicted for, the same criminal act to which the declarations and admissions related; and although it may also be proved that, before the making of the declarations, the two had jointly arranged to commit the identical act. (Fouts v. State, 7 Ohio St. 471.) On the trial of a party charged with crime, evidence of the declarations of a conspirator with the accused, for the commission of such crime, when made in the absence of the accused, is not ad Accomplice. missible against him, to prove either the body of the crime, or the existence of the alleged conspiracy, unless they either so accompany the execution of the common criminal intent as to become a part of the res gestæ, or in themselves tend to further the execution of the common criminal intent. (Clawson v. State, 14 Ohio St. 234.) Where two or more persons are charged with the commission of an alleged murder, the declarations of those not on trial can not be proved to show their motives, or malice on their part toward the deceased, unless such declarations were made during the pendency of the conspiracy, and in furtherance of the common design. (Rufer v. State, 25 Ohio St. 464.) Acts of accomplice after arrest; when admissible.-Proof tending to connect another party with the defendant, as a particeps criminis, will not justify the introduction in evidence of counterfeit bills found upon such other party fifty days after the sale charged, though such bills be of the same manufacture with those proved to have been sold by the defendant-there being no evidence of any intercourse or association between the defendant and such other party, during the intervening time., (Griffin v. State, 14 Ohio St. 55.) Conviction of accomplice; not evidence against accessory.-J. and K. were indicted at the same term, but separately, for the same arson. J. having been convicted and sentenced to the penitentiary, the state, on the trial of K., offered the record of that conviction, and the same was admitted in evidence. Held, that this was error. (Kazer v. State, 5 Ohio, 280.) Conviction of accomplice; not evidence for accessory.-On the trial of E., charged, under the act of March 20, 1860, with causing a building owned by him to be burned, with the intent to defraud the insurer of such building, H., called as a witness on behalf of the state, having testified that he burned the building in question, and that he was hired to do so by E., the court was requested, on behalf of the accused, to instruct the jury that H. was guilty of no crime, if he burned the building at the instance of E., and was therefore interested in procuring the conviction of E. (as it would result in his own acquittal, if tried for setting said building on fire). Held, that this instruction was properly refused. The criminal liability of H. for his participation in the transaction, whatever it was, was in no way affected by the result of the prosecution against E. On the trial of H. for such charge, the fact of Accomplice. E.'s conviction would be wholly immaterial; and if it be conceded that it would be material for H. to show that he did the act at the instance of E., the record in the present case could not be used by him as evidence of that fact. (Evans v. The State, 24 OhioSt. 458.) Competency of accomplice; separate trial.-N. being indicted under section 36 of the crimes act of 1835 (1 Curwen, 195), for aiding and abetting H. to steal a horse. On the trial, the prosecutor offered H. as a witness; but N. objected, because H. was a codefendant with him on the record, and therefore, until his case wasdisposed of, an incompetent witness against the other defendant. But the court held that where a severance takes place, and the parties are separately tried, it is, to all intents and purposes, as if they were charged in separate indictments, and in such case one may testify for or against the other. Besides that, the rule never had any application where, as in this case, the parties are charged with distinct and different offenses. (Noland v. State, 19 Ohio, 131.) Where an indictment against two charged one with burning and the other with procuring the burning of a building, and the court awards separate trials, and continues the case as to the principal, such principal becomes a competent witness on the trial of the other party. Approving Noland v. State, 19 Ohio, 131. (Allen v. State, 10 Ohio St. 287.) When separate trials are awarded to parties jointly indicted, each is a competent witness for the state upon the trial of the other, without being first acquitted or convicted, or without a nolle prosequi being first entered on the indictment. (Brown v. State, 18 Ohio St. 496.) Corroboration of accomplice is question for jury.-It is error in the court to charge the jury that the evidence of an accomplice is corroborated by the testimony of another witness. Whether it is corroborated or not is a question for the jury. (Noland v. State, 19 Ohio, 131.) Corroboration of accomplice not necessary.-While it is the duty of the court, in their discretion, to advise the jury not to convict of felony upon the testimony of an accomplice alone, without corroboration, there is no rule of law preventing a jury from convicting upon the uncorroborated testimony of an accomplice. (Allen v. State, 10 Ohio St. 287.) It is not error in the court to instruct the jury that they may |