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self dead to all sentiments of that description, and having already deserted his first wife for another woman, he has given the clearest evidence that no farther family dissentions need be apprehended from her appearing to give evidence against him.” Alison, Prac. Cr. L. 463.

Whether or not the wife is a competent witness against her husband on a charge of treason, appears to have been doubted. In Grigg's case, T. Raym. 1, which was an indictment for bigamy, it was said, obiter, that the wife could not be a witness against her husband, except in treason ; but on the other hand it has been asserted that a wife is not bound in case of high treason, to discover her husband's treason; Brownl. Rep. 47; and there are many authorities to the same effect which appear to settle the point. i Hale, P. C. 301 ; Hawk. P. C. b. 2, s. 2, c. 46, s. 182; Bac. Ab. Evid. A. 1. See 2 Stark. Ev. 404, 2d ed.; 2 Russ. 607; Phill. Ev. 161, 8th ed.

Although by stat. 6 Geo. 4, c. 16, s. 37, commissioners of bankrupts are authorized to summon before them the wise of any bankrupt, and to examine her for the discovery and finding out of the estate of the bankrupt concealed by her, yet she cannot be examined touching the bankruptcy of her husband. 12 Vin. Ab. 11; Ex parte James, 1 P. Wms. 611. Her evidence being admissible only by statute, before the commissioners, she will not be a competent witness for or against her husband, on an indictment against him for concealing his effects.

Cases of personal violence.] It is quite clear that a wife is a competent *witness against her husband, in respect of any charge which af- { *140 ] fects her liberty or person (1). Per Hullock, B., Wakefield's case, p. 157, Murray's ed. ; 2 Russ. 606. Thus in Lord Audley's case, who was tried as a principal in the second degree, for a rape upon his own wife; the judges resolved that though in a civil case, the wife is not a competent witness, yet that in a criminal case of this nature, being the party grieved, upon whom the crime is committed, she is to be admitted as a witness against her husband. 3 How. St. Tr. 414; 1 Hale, P. C. 301. So on an indictment against the husband for an assault upon the wife. Azire's case, 1 Str. 633 ; B. N. P. 287. So a wife is always permitted to swear the peace against her husband, and her affidavit has been permitted to be read, on an application to the Court of King's Bench, for an information against the husband, for an attempt to take her away by force, after articles of separation. Lady Lawley's case, B. N. P. 287.

Upon an indictment under the repealed statute 3 Hen. 7, c. 2, for taking away and marrying a woman contrary to her will, she was a competent witness to prove the case against her husband de facto. Fullwood's case, Cro. Car. 488; Brown's case, 1 Vent. 243 ; Naagen Swendsen's case, 14 How. St. Tr. 559, 575. And she was consequently a witness for him. Perry's case, coram Gibbs, 1794 ; Hawk. P. C. b. 2, c. 46, s. 79, cited Ry. and Moo. N. P. C. 253 (a). But a doubt has been entertained, whether, if the woman afterwards assent to the marriage, she is capable of being a witness. In Brown's case, (supra,) it is said by Lord Hale, that most were of opinion that had she lived with him any considerable time, and as

(1) Trever's case, 1 Rogers' Rec. 107. Resp. o. Hevice & al., 2 Yeates, 114. Soule's case, 5 Greenl. 407. Wiggin's case, 2 Rogers' Rec. 156. State v. Boyd, 2 Hill, 288.

(a) Eng. Com. L. Rep. xxi. 453.

sented to the marriage, by a free cohabitation, she should not have been admitted as a witness against her husband. I Hale, P. C. 302. But Mr. Justice Blackstone, in his Commentaries, has expressed a contrary opinion. 4 Com. 209. And the arguments of Mr. East, on the same side, appear to carry great weight with them. 1 East, P. C. 454. In a case before Mr. Baron Hullock, where the defendants were charged, in one count, with a conspiracy to carry away a young lady, under the age of sixteen, from the custody appointed by her father, and to cause her to marry one of the defendants ; and in another count, with conspiring to take her away by force, being an heiress, and to marry her to one of the defendants; the learned judge was of opinion that even assuming the witness to be at the time of trial the lawful wife of one of the defendants, she was yet a competent witness for the prosecution, on the ground of necessity, although there was no evidence to support that part of the indictment which charged force ; and also on the ground that the defendant, by his own criminal act, could not exclude such evidence against himself. Wakefield's case, 257, Murray's ed.; 2 Russ. 605; 2 Stark. Ev. 402, (n.) 2d ed.

Upon an indictment under Lord Ellenborough's act, against a man for shooting at his wise, the latter was admitted as a witness by Mr. Baron Garrow, after consulting Holroyd, J., upon the ground of the necessity of the case, and Mr. Justice Holroyd sent Mr. Baron Garrow the case of R. | *141 ] v. Jagger, (1 East, P. C. 455,) York Assizes, *1797, where the husband attempted to poison his wise with a cake, in which arsenic was introduced, and the wife was admitted to prove the fact of the cake having been given her by her husband, and Mr. Justice Rooke afterwards delivered the opinion of the twelve judges, that the evidence was rightly admitted. Mr. Justice Holroyd, however, said that he thought the wife could only be admitted to prove facts, which could not be proved by any other witness. 2 Russ. 106.

Upon the same principle that the evidence of the wife, if living, would be received to prove a case of personal violence, her dying declarations are admissible in case of murder by her husband. Woodcock's case, i Leach, 500 ; John's case, Id. 504 (n.); 2 Russ. 606 (1). And in similer cases of personal violence, the examinations of the party (husband or wife) murdered, taken before a magistrate, pursuant to the statute, would, as it seems, be admissible against the husband or wife, where the evidence of the husband or wife, if living, would have been admissible. See M’Nally, Ev. 175.

(1) Penn. v. Stoops, Addis. 332.


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144 146

Accomplices in general

141 Confirmation Principal felon

142 By whoin Accomplice, when evidence for prisoner 142 | Situation of an accomplice when called Promise of pardon


as a witness Effect of accomplice's evidence



Accomplices in general.] The evidence of persons who have been accomplices in the commission of a crime with which the prisoner stands charged, is, in general, admissible against him (1). This rule has been stated to be founded on necessity, since, if accomplices were not admitted, it would frequently be impossible to find evidence to convict the greatest offenders. Hawk. P. C. b. 2, c. 46, s. 94. Even where the accomplice has been joined in the same indictment with the prisoner, he may still be called as a witness, before he is convicted. Id. s. 95. It is said that an accomplice indicted with another is an admissible evidence, if he be not put upon his trial. 2 Stark. Ev. 11, 2d ed. ; 2 Russell, 597. In strictness, however, there does not seem to be any objection to the admitting the witness at any time before conviction. The party that is the witness, says Lord Hale, is never indicted, because that much *weakens (*142 ) and disparages his testimony, but possibly does not wholly take away his testimony. 1 Hale, P. C. 305. It is not a matter of course, to admit an accomplice to give evidence on the trial, even though his testimony has been received by the committing magistrates, but an application to the court for the purpose must be made. Phill. Ev. 28, 8th ed. The practice, where the testimony of an accomplice is required to prove the case before the grand jury, and he is in custody, is for the counsel for the prosecution to move that he be allowed to go before the grand jury, pledging his own opinion, after a perusal of the facts of the case, that the testimony is essential. 2 Stark. Ev. 11, 2d ed. Where the accomplice has been joined in the indictment, and before the case comes on, it appears that his evidence will be required, the usual practice is, before opening the case, to apply to have the accomplice acquitted. Rowland's case, Ry. and Moo. N. P. C. 401 (a). Where the case has proceeded against all the prisoners, but no evidence appears against one of them, the court will, in its discretion, upon the application of the prosecutor, order that one to be acquitted for the purpose of giving evidence against the rest. Fraser's case, i M'Nally, 56. But the judges will not, in general, admit an accomplice, although applied to for that purpose by the counsel for the prosecution, if it appears that he is charged with any other felony than that on the trial of which he is to be a witness. This was stated by Mr. Justice Park in several cases, on the Oxford Spring Circuit, 1826. Carrington's Supplement, 67, 2d ed.

(1) Brown 0. The Commonwealth, 2 Leigh, 769. At the discretion of the Court upon motion of the public prosecuting officer. People v. Whipple, 9 Cowen, 707.

(a) Eng. Com. L. Rep. xxi. 471.

Where a party had been joined in the indictment, and it was intended to call him as a witness for the prosecution, it was formerly the practice to enter a noli prosequi as to him. Ward v. Man, 2 Atk. 229. Where the defendants were indicted for a conspiracy, to persuade a witness to absent himself from the trial of a person charged with uttering base money,

the attorney-general entered a noli prosequi, as to two of the defendants, who were then examined for the crown, and on their evidence the others were convicted. Ellis's case, sitt. after H. T. 1802, 1 M’Nal. Ev. 55.

Principal felon.] Upon an indictment against a receiver, the principal felon, when not convicted, may be admitted as a witness against the defendant (1). This was allowed on the repealed statute, 22 Geo. 3, e. 28, Patram's case, 2 East, P. C. 782 ; 1 Leach, 419, (n.) 'S. C., and in a prosecution on the statute 4 Geo. 1, c. 11, for taking a reward to help to stolen goods. Wild's case, 2 East, P. C. 783 ; Haslam's case, Id. 702 ; i Leach, 418.

Accomplicewhen competent for prisoner.] It is quite clear that an accomplice, not joined in the indictment, is a competent witness for the prisoner, in conjunction with whom, he himself committed the crime (2). And even where they are severally indicted for the same offence, the one may be called for the other. If A. B. and C., says Lord Hale, be indicted of perjury, on three several indictments, concerning the same matter, and [ *143 ] A. pleads not guilty, B. and Ć. *may be examined as witnesses for A., for as yet they stand unconvicted, although they are indicted. Balmore's case, 1 Hale, P. C. 305. So it has been adjudged that such of the defendants in an information, against whom no evidence has been given, may be witnesses for the others. Bedder's case, 1 Sid. 237; Hawk. P. C. b. 2, c. 46, s. 98. The practice in this case is to apply to court to permit the issue, as to the intended witness, to go immediately to the jury, and he being found not guilty, is then a competent witness. Frazer's case, 1 M'Nal. Ev. 56. Where two were indicted for an assault, and one submitted and was fined 1s. and the other pleaded not guilty, upon the trial, the chief justice allowed him to call the other defendant, the matter being now at an end as to him. Fletcher's case, 1. Str. 633. So where, on a joint indictment ‘against two, one of them pleaded in abatement, and there being no replication, he was discharged; he was admitted without objection as a witness for the other defendant. Sherman's case, cases temp. Hardw. 303. However, in a case before Lord Ellenborough, in which the foregoing decisions were not cited, his lordship ruled, on an indictment for a misdemeanor, that a defendant who had suffered judgment by default, could not be called by another defendant. “In the case of a joint indictment,” he observed, “ against several for a joint offence, I have never known this evidence offered, and I think it cannot be admitted. To allow this evidence, would go to every criminal case, for if two were indicted, one, by suffering judgment by default, might protect the other. There is a community of guilt : they are all engaged in an unlawful proceeding; the offence is the offence of all, not the act of an individual only.” Lafone's case, 5 Esp. 154. It may be observed, that

(1) People v. Whipple, 9 Cowen, 707.
(2) U. States v. Henry, 4 Wash. C. C. Rep. 428.

the reasons here given would exclude the evidence of an accomplice in every case, when tendered for the prisoner. See also Mr. Phillips's remarks upon this case, Phill. Ev. 70, 8th ed. (1)

Accomplice--promise of pardon.] Although Lord Hale thought that if a man had a promise of pardon if he gave evidence against one of his confederates, this disabled his testimony, 2 Hale, P. C. 280, yet it is now fully settled that such a promise, however it may affect the credibility of the witness, will not destroy his competency. Tonge's case, Kelynge, 18; Phill. Ev. 26, 8th ed. The rule is thus laid down by Mr. Serjeant Hawkins. It has been ruled, that it is no good exception, that a witness has the promise of a pardon or other reward, on condition of his giving his evidence, unless such reward be promised, by way of contract for giving such and such particular evidence, or full evidence, or any way in the least to bias him to go beyond the truth, which, not being easily avoided, in promises or threats of this kind, it is certain that too great caution cannot be used in making them. Hawk. b. 2, c. 46, s. 135. Vide ante, 127, 128.

Accomplice-effect of his evidence. A conviction on the testimony of an accomplice, uncorroborated, is legal. This point having been reserved in a case tried before Buller, J., the twelve judges were *unani- [ *144 ] mously of opinion that an accomplice alone is a competent witness, and that if the jury, weighing the probability of his testimony, think him worthy of belief, a conviction supported by such testimony alone, is perfectly legal. Attwood's case, 1 Leach, 464; Durhani's case, Id. 478; 1 Hale, P. C. 304, 305; Jones's case, 2 Camp. 132. Per Lord Denman, Hasting's case, 7 C. and P. 152 (a); per Alderson, B., Wilks' case, Id. 273. This rule, however, is in practice subjected to much limitation ; “ Judges," observes Lord Ellenborough, “in their discretion, will advise a jury not to believe an accomplice unless he is confirmed, or only in so far as he is confirmed ; but if he is believed, his testimony is unquestionably sufficient to establish the fact he deposes to.” Jones's case, 2 Camp. 132. So where, on an indictment for highway robbery, an accomplice only was called, the court, though it was admitted that such evidence was legal, thought it too dangerous to permit a conviction to take place, and the prisoners were acquitted. Jones and Davis's case, 1 Leach, 479 (n.) The practice, therefore, is for the court to direct the jury in such cases to acquit the prisoner, unless in some respects the evidence is confirmed (2).

Accomplice-effect of his evidence-confirmation.] Although in prac

ger, 431.

:(1) Defendants jointly indicted for a riot, cannot be witnesses for or against each other, until they are discharged from the prosecution or convicted. The State o. Mooney & al., 1 Yer

(2) Case of Brown & al., 2 Rogers' Rec. 38. People v. Reeder, 1 Wheelers’ C. C. 418. M'Dowel's case, 5 Rogers' Rec. 94. Note to 2 Starkie, 12, New Ed.

On a charge of stealing two sheep, an accomplice stated that the prisoner stole them himself, and to confirm his evidence was given that a quantity of mutton was found in the house of the prisoner's father (where he resided), which corresponded in size with parts of the stolen sheep. Patteson, J., held this was a sufficient confirmation of the accomplice to be left to the jury, but that if the confirmation had merely gone to the extent of confirming the accomplice as to matters connected with himself only, it would not have been sufficient. Birkett's case, 8 C. & P. 732 (b).

(a) Eng. Com. L. Rep. xxxii. 475. (b) Id. xxxiv. 608

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