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The doctrine of evidence upon pleas of the crown is in most respects the same as that upon civil actions. There are, however, a few leading points wherein, by several statutes and resolutions, a difference is made between civil and criminal evidence.
First, in all cases of high treason, petit treason, and misprision of treason, by statutes 1 Edw. VI. c. 12, and 5 & 6 Edw. VI. c. 11, two lawful witnesses are required to convict a prisoner; unless he shall willingly and without violence confess the same. By statute 1 & 2 Ph. and M. c. 10, a further exception is made to treasons in counterfeiting the king's seals or signatures, and treasons concerning coin current within this realm: and more particularly, by c. 11, the offences of importing counterfeit foreign money current in this kingdom, and impairing, counterfeiting, or forging any current coin.. The statutes 8 & 9 W. III. c. 25, and 15 & *16 Geo. II. c. 28, in their subsequent extensions *357] of this species of treason, do also provide that the offenders may be indicted, arraigned, tried, convicted, and attainted by the like evidence and in such manner and form as may be had and used against offenders for counterfeiting the king's money. But, by statute 7 W. III. c. 3, in prosecutions for those treasons to which that act extends, the same rule (of requiring two wit nesses) is again enforced; with this addition, that the confession of the prisoner, which shall countervail the necessity of such proof, must be in open court. In the construction of which act, it hath been holden(a) that a confession of the prisoner taken out of court, before a magistrate or person having competent authority to take it, and proved by two witnesses, is sufficient to convict him of treason. But hasty, unguarded confessions, made to persons having no such authority, ought not to be admitted as evidence under this statute. And indeed, even in cases of felony at the common law, they are the weakest and most suspicious of all testimony; ever liable to be obtained by artifice, false hopes, promises of favour, or menaces; seldom remembered accurately, or reported with due precision; and incapable in their nature of being disproved by other nega tive evidence.16 By the same statute, 7 W. III., it is declared that both witnesses must be to the same overt act of treason, or one to one overt act and the other to another overt act, of the same species of treason, (b) and not of distinct heads or kinds; and no evidence shall be admitted to prove any overt act not (a) Fost. 240-244. (*) See St. Tr. ii. 144. Foster, 235.
but it is permitted to an advocate to urge what has only the semblance of it. He says he would not have ventured himself to have advanced this (especially when he was writing upon philosophy) if it had not also been the opinion of the gravest of the stoics, Panatius. "Judicis est semper in causis verum sequi; patroni nonnunquam veri simile, etiam si minus sit verum defendere: quod scribere (præsertim cum de philosophia scriberem) non auderem, nisi idem placeret gravissimo stoicorum Panatio." Cic. de Off. lib. 2, c. 14.CHRISTIAN.
And now this valuable privilege has been extended to all persons accused of felony, by stat. 6 & 7 W. IV. c. 114, by which it is enacted that all persons tried for felonies shall be admitted, after the close of the case for the prosecution, to make full answer and defence thereto, by counsel learned in the law, or by attorneys in courts where attorneys practise as counsel.-STEWART.
16 It seems to be now clearly established that a free and voluntary confession by a person accused of an offence, whether made before his apprehension or after, whether on a judicial examination or after commitment, whether reduced into writing or not,in short, that any voluntary confession made by a prisoner to any person, at any time or place, is strong evidence against him, and, if satisfactorily proved, sufficient to convict without any corroborating circumstance. But the confession must be voluntary, not obtained by improper influence, nor drawn from the prisoner by means of a threat or promise; for, however slight the promise or threat may have been, a confession so obtained cannot be received in evidence, on account of the uncertainty and doubt whether it was not made rather from a motive of fear or of interest than from a sense guilt. Phil. Ev. 86. The prisoner's statement must not be taken upon oath, and, if he has been sworn, it cannot be received in evidence. A confession is evidence only against the person confessing,-not against others, although they are proved to be his accomplices. See Phil. Ev. c. 5, s. 5, and the authorities there collected on this subject. -CHITTY.
expressly laid in the indictment." And therefore, in Sir John Fenwick's case, in king William's time, where there was but one witness, an act of parliament (c) was made on purpose to attaint him of treason, and he was executed.(d) But in almost every other accusation one positive wi..ess is sufficient. Baron Montesquieu lays it down for a rule(e) that those laws which condemn a man to death in any case, on the deposition of a single witness, are fatal to liberty; and he adds this reason, that the witness who affirms, and the accused who denies, make an equal balance:(f) there is a necessity therefore to call *in a [*358 third man to incline the scale. But this seems to be carrying matters too far; for there are some crimes in which the very privacy of their nature excludes the possibility of having more than one witness: must these, therefore, escape unpunished? Neither indeed is the bare denial of the person accused equivalent to the positive oath of a disinterested witness. In cases of indictments for perjury this doctrine is better founded; and there our law adopts it: for one witness is not allowed to convict a man for perjury; because then there is only one oath against another.(g) In cases of treason also there is the accused's oath of allegiance to counterpoise the information of a single witness; and that may perhaps be one reason why the law requires a double testimony to convict him; though the principal reason undoubtedly is to secure the subject from being sacrificed to fictitious conspiracies, which have been the engines of profligate and crafty politicians in all ages.
Secondly, though from the reversal of colonel Sidney's attainder by act of parliament, in 1689,(h) it may be collected(i) that the mere similitude of handwriting in two papers shown to a jury, without other concurrent testimony, is no evidence that both were written by the same person; yet undoubtedly the testimony of witnesses, well acquainted with the party's hand, that they believe the paper in question to have been written by him, is evidence to be loft to a jury.(18
Thirdly, by the statute 21 Jac. I. c. 27, a mother of a bastard child, concealing its death, must prove by one witness that the child was born dead; otherwise such concealment shall be evidence of her having murdered it.(k)19
Fourthly, all presumptive evidence of felony should be admitted cautiously, for the law holds that it is better that ten guilty persons escape than that one innocent suffer. *And Sir Matthew Hale in particular() lays down two rules most prudent and necessary to be observed: 1. Never to convict a [*359
man for stealing the goods of a person unknown, merely because he will give no account how he came by them, unless an actual felony be proved of such goods; and, 2. Never to convict any person of murder or manslaughter till at least the body be found dead; on account of two instances he mentions where persons were executed for the murder of others who were then alive but missing.
Lastly, it was an antient and commonly-received practice(m) (derived from the civil law, and which also to this day obtains in the kingdom of France)(n) that as counsel was not allowed to any prisoner accused of a capital crime, so neither should he be suffered to exculpate himself by the testimony of any witnesses. And therefore it deserves to be remembered to the honour of Mary I., (whose early sentiments, till her marriage with Philip of Spain, seem to have been humane and generous,)(0) that when she appointed Sir Richard Morgan
"By 5 & 6 Vict. c. 51, where the overt act is an attempt to injure the person of the sovereign, a conviction may be had on the same evidence as if the prisoner were charged with murder: so that in this case two witnesses are not required.-STEWART.
18 But the proof of handwriting is not evidence in high treason unless the papers are found in the custody of the prisoner. 1 Burr. 644.-CHRISTIAN.
19 Repealed, by 43 Geo. III. c. 58, which is also repealed, by 9 Geo. IV. c. 31.—CHITTY.
chief justice of the common pleas she enjoined him, "that notwithstanding the old error, which did not admit any witness to speak, or any other matter to be heard, in favour of the adversary, her majesty being party; her highness's plea sure was that whatsoever could be brought in favour of the subject should be admitted to be heard, and, moreover, that the justices should not persuade them. selves to sit in judgment otherwise for her highness than for her subject."(p) Afterwards, in one particular instance, (when embezzling the queen's military stores was made felony by statute 31 Eliz. c. 4,) it was provided that any person impeached for such felony "should be received and admitted to make any lawful proof that he could, by lawful witness or otherwise, for his discharge and defence;" and in general the courts grew so heartily ashamed of a doctrine so unreasonable and oppressive that a practice was *gradually introduced *360] of examining witnesses for the prisoner, but not upon oath;(g) the consequence of which still was, that the jury gave less credit to the prisoner's evidence than to that produced by the crown. Sir Edward Coke(r) protests very strongly against this tyrannical practice; declaring that he never read in any act of parliament, book-case, or record, that in criminal cases the party accused should not have witnesses sworn for him, and therefore there was not so much as scintilla juris against it.(s) And the house of commons were so sensible of this absurdity that, in the bill for abolishing hostilities between England and Scotland,(t) when felonies committed by Englishmen in Scotland were ordered to be tried in one of the three northern counties, they insisted on a clause, and carried it(u) against the efforts of both the crown and the house of lords, against the practice of the courts in England, and the express law of Scotland, (w) "that in all such trials, for the better discovery of the truth, and the better information of the consciences of the jury and justices, there shall be allowed to the party arraigned the benefit of such credible witnesses to be examined upon oath as can be produced for his clearing and justification." At length, by the statute W. III. c. 3, the same measure of justice was established throughout all the realm in cases of treason within the act: and it was afterwards declared, by statute 1 Anne, s. 2, c. 9, that in all cases of treason and felony all witnesses for the prisoner should be examined upon oath, in like manner as the witnesses against him.
When the evidence on both sides is closed, and indeed when any evidence hath been given, the jury cannot be discharged (unless in cases of evident ne cessity)(x) till they have given in their verdict;20 but are to consider of it, and deliver it in, with the same forms as upon civil causes; only they cannot, in a criminal case which touches life or member, give a privy verdict.(y) But the judges may adjourn while the jury are withdrawn to confer, and return to receive the verdict in open court.(z) And such public or open verdict may be either general, guilty, or not guilty; *or special, setting forth all the *361] circumstances of the case and praying the judgment of the court, whether, for instance, on the facts stated, it be murder, manslaughter, or no crime at all. This is where they doubt the matter of law, and therefore choose to leave it to the determination of the court; though they have an unquestionable right of determining upon all the circumstances and finding a general verdict, if they think proper so to hazard a breach of their oaths: and if their verdict be notoriously wrong, they may be punished and the verdict set aside by attaint at the suit of the king, but not at the suit of the prisoner.(a) But the practice heretofore in use of fining, imprisoning, or otherwise punishing
20 It is now settled that when a criminal trial runs to such a length as it cannot be concluded in one day, the court, by its own authority, may adjourn till the next morn ing; but the jury must be somewhere kept together, that they may have no communication but with each other. Stone's case, 6 T. R. 527.-CHRISTIAN.
jurors, merely at the discretion of the court, for finding their verdict contrary to the direction of the judge, was arbitrary, unconstitutional, and illegal, and is treated as such by Sir Thomas Smith two hundred years ago; who accounted "such doings to be very violent, tyrannical, and contrary to the liberty and custom of the realm of England."(b) For, as Sir Matthew Hale well observes, (c) it would be a most unhappy case for the judge himself if the prisoner's fate depended upon his directions: unhappy also for the prisoner; for, if the judge's opinion must rule the verdict, the trial by jury would be useless. Yet in many instances(d) where, contrary to evidence, the jury have found the prisoner guilty, their verdict hath been mercifully set aside and a new trial granted by the court of king's bench; for in such case, as hath been said, it cannot be set right by attaint. But there hath yet been no instance of granting a new trial where the prisoner was acquitted upon the first.(c)" ·
If the jury therefore find the prisoner not guilty, he is then forever quit and discharged of the accusation, (d) except he be appealed of felony within the time limited by law. And upon such his acquittal, or discharge for want of *prosecution, he shall be immediately set at large without payment of any fee to the gaoler.(e) But if the jury find him guilty,(f) he is then said to be convicted of the crime whereof he stands indicted; which conviction may accrue two ways, either by his confessing the offence and pleading guilty, er by his being found so by the verdict of his country.
When the offender is thus convicted, there are two collateral circumstances that immediately arise. 1. On a conviction (or even upon an acquittal where there was a reasonable ground to prosecute, and in fact a bona fide prosecution) for any grand or petit larceny or other felony, the reasonable expenses of prosecution, and also, if the prosecutor be poor, a compensation for his trouble and loss of time, are, by statutes 25 Geo. II. c. 36 and 18 Geo. III. c. 19, to be allowed him out of the county stock, if he petitions the judge for that purpose; and by statute 27 Geo. II. c. 3, explained by the same statute, (18 Geo. III. c. 19,) all persons appearing upon recognizance or subpana to give evidence, whether any indictment be preferred or no, and as well without conviction as with it, are entitled to be paid their charges, with a further allowance (if poor) for their trouble and loss of time.22 2. On a conviction of larceny in particular, the prosecutor shall have restitution of his goods, by virtue of the statute 21 Hen. VIII. c. 11.23 For by the common law there was no restitution of goods
(5) Smith's Commonw. l. 3, c. 1.
(©) 2 Hal P. C. 313.
1 Lev. 9. T. Jones, 163. St. Tr. x. 416.
() 2 Hawk. P. C. 442.
(d) The civil law in such case only discharges him from the same accnser, but not from the same accusation. Ff. 48, 2, 7, 8 2.
(Stat. 14 Geo. III. c. 20.
In the Roman republic, when the prisoner was con victed of any capital offence by his judges, the form of pronouncing that conviction was something peculiarly delicate,-not that he was guilty, but that he had not been enough upon his guard:-"parum cavisse videtur." Festus, 325.
21 No new trial can be granted in cases of felony or treason, (Rex vs. Mawbey, 6 T. R. 638; and see 13 East, 416, n. b. ;) but in cases of misdemeanour it is entirely discretionary in the court whether they will grant or refuse a new trial. Id. ibid. A new trial cannot, in general, be granted on the part of the prosecutor after the defendant has been acquitted, even though the verdict appears to be against evidence. But it seems to be the better opinion that where the verdict was obtained by the fraud of the defendant, or in consequence of irregularity in his proceedings, as by keeping back the prosecutor's witnesses or neglecting to give due notice of trial, a new trial may be granted. 1 Chitt. C. L. 657.-CHITTY.
22 These acts are now all repealed, and new provisions on the same subject are made, by 7 Geo. IV. c. 64, s. 22, et seq.-CHITTY.
Repealed, by 7 & 8 Geo. IV. c. 27; and, by 7 & 8 Geo. IV. c. 29, s. 57, "to encourage the prosecution of offenders," it is enacted that if any person guilty of any felony or misdemeanour under that act in stealing, taking, obtaining, or converting, or in knowingly receiving any chattel, money, valuable security, or other property whatsoever, shall be indicted for any such offence, by or on the behalf of the owner of the property, or his executor or administrator, and convicted thereof, in such case the property shall be restored to the owner or his representative; and the court before whom any such person shall be so convicted shall have power to award from time to time writs of restitution for the said property, or to order the restitution thereof in a summary manner. provided, that if it shall appear before any award or order made that any valuable
upon an indictment, because it is at the suit of the king only; and therefore the party was enforced to bring an appeal of robbery, in order to have his goods again.(g) But, it being considered that the party prosecuting the offender by indictment deserves to the full as much encouragement as he who prosecutes by appeal, this statute was made, which enacts that if any person be convicted of larceny by the evidence of the party robbed, he shall have full restitution of his money, goods, and chattels, or the value of them out of the offender's goods, if he has any, by a writ to be granted by the justices. And, the construction of this act having been in great measure conformable to the law of appeals, it has therefore in practice superseded the use of appeals in larceny. For instance: as formerly upon appeals,(h) so now upon indictments of larceny, this writ of restitution *shall reach the goods so stolen, notwithstanding *363] the property(i) of them is endeavoured to be altered by sale in marketovert.(k) And though this may seem somewhat hard upon the buyer, yet the rule of law is that "spoliatus debet, ante omnia, restitui," especially when he has used all the diligence in his power to convict the felon. And, since the case is reduced to this hard necessity, that either the owner or the buyer must suffer, the law prefers the right of the owner, who has done a meritorious act by pursuing a felon to condign punishment, to the right of the buyer, whose merit is only negative, that he has been guilty of no unfair transaction. And it is now usual for the court, upon the conviction of a felon, to order, without any writ, immediate restitution of such goods as are brought into court to be made to the several prosecutors. Or else, secondly, without such writ of restitution, the party may peaceably retake his goods, wherever he happens to find them,(1) unless a new property be fairly acquired therein. Or, lastly, if the felon be convicted and pardoned, or be allowed his clergy, the party robbed may bring his action of trover against him for his goods and recover a satisfaction in damages. But such action lies not before prosecution, for so felonies would be made up and healed;(m) and also recaption is unlawful, if it be done with intention to smother or compound the larceny, it then becoming the heinous offence of theft-bote, as was mentioned in a former chapter.(n)
It is not uncommon when a person is convicted of a misdemeanour which principally and more immediately affects some individual, as a battery, imprisonment, or the like, for the court to permit the defendant to speak with the *364] prosecutor *before any judgment is pronounced, and, if the prosecutor declares himself satisfied, to inflict but a trivial punishment. This is done to reimburse the prosecutor his expenses, and make him some private amends, without the trouble and circuity of a civil action. But it surely is a dangerous practice; and, though it may be intrusted to the prudence and dis
security shall have been bona fide paid or discharged by some person or body corporate ilable to the payment thereof, or, being a negotiable instrument, shall have been bona Sde taken or received by transfer or delivery, by some person or body corporate, for a just and valuable consideration, without any notice, or without any reasonable cause to suspect, that the same had by any felony or misdemeanour been stolen, taken, obtained, or converted as aforesaid, in such case the court shall not award or order the restitution of such security.
The proviso in this clause seems to be new; and the enacting part of it makes some very important alterations in the law, as the former act of parliament extended only to cases of prosecutions of thieves, and not receivers, and did not include property lost by false pretences or by other misdemeanours.-CHITTY.
24 It should seem that the sale in market-overt to a bona fide purchasor between the original taking and the attainder of the felon does operate a sort of conditional change of the property, for the owner can only sue, for the value of the goods, any person in possession of them, at or after conviction: in the interval they are not the property of the original owner, but of the vendee; and if that vendee dispose of them before attainder, though with notice of the felony, he is not liable. Harwood vs. Smith, 2 T. R. 750. Nor loes the statute extend to goods obtained from the owner merely by fraud without larceny.-COLeridge.