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 This was allowed on the repealed statute, 22 Geo. 3, e. 28, Patram's case, 2 East, P. C. 782; 1 Leach, 419, (n.) S. C., and in a prosecution on the statute 4 Geo. 1, c. 11, for taking a reward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; 1 Leach, 418.

Accomplice-when 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 C. *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; Durham'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

(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 v. Mooney & al., 1 Yerger, 431. (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) 1d. xxxiv. 608

tice, in order to give it effect, the evidence of an accomplice requires confirmation, it is obvious that it cannot be required to be confirmed in every particular, for if that were requisite, his testimony would be better omitted altogether. Even in Scotland, where the evidence of an accomplice unsupported is insufficient to convict, a confirmation of his testimony on certain parts of the case is all that is required. "The true way," says an eminent writer on the criminal law of Scotland, "to test the credibility of a socius is, to examine him minutely as to small matters, which have already been fully explained by previous, unsuspected witnesses, and on which there is no likelihood that he could think of framing a story, nor any probability that such a story, if framed, would be consistent with the facts previously deposed to by unimpeachable witnesses. If what he says coincides with what has previously been established, in the seemingly trifling, but really important matters, the presumption is strong that he has also spoken truly in those important points which directly concern the prisoner; if it is contradicted by these witnesses, the inference is almost unavoidable, that he has made up a story, and is unworthy of credit in any particular." Alison's Prac. of the Crim. Law of Scotl. 157. The rule upon the subject which has generally been laid down is, that if the jury are satisfied that he speaks truth in some material part of his testimony, in which they see him confirmed by unimpeachable evidence, this may be a ground for their believing that he also speaks truth in other parts, as to which there may be no confirmation. So far all the authorities agree; but the point upon which a difference of opinion and of practice appears to have prevailed is, as to the particular part or parts of the accomplice's testimony, which ought [*145] to be confirmed. Phill. *Ev. 33, 8th ed. Where, on the trial of several prisoners, an accomplice who gave evidence was confirmed in his testimony with regard to some of the prisoners, but not as to the rest, Bayley, J., informed the jury that if they were satisfied by the confirmatory evidence, that the accomplice was a credible witness, they might act upon his testimony with respect to others of the defendants, though as far as his evidence affected them, he had received no confirmation; and all the defendants were convicted. Dawber's case, 3 Stark. N. P. C. 34 (a). On the other hand, in a case of great importance, where an accomplice swearing positively to several prisoners was confirmed as to some, and not confirmed as to others, Vaughan, B., recommended the jury to acquit the latter, and they were accordingly acquitted, while those as to whom the accomplice was confirmed were convicted and executed. Field's case, Berks Spring Assizes, 1838; Dict. Sess. Pract. 482, 4th ed. Upon the principle laid down in Dawber's case, the judges held that an accomplice did not require confirmation as to the person he charged, if he was confirmed as to the particulars of his story. Birkett's case, Russ. and Ry. 251 (b); but see Mr. Starkie's observations, 2 Ev. 12 (n.) The above decision has been greatly shaken, if not overruled, by later authorities. In Addis's case, 6 C. and P. 388 (c), Patteson, J., said, "The corroboration of an accomplice ought to be as to some fact or facts, the truth or falsehood of which goes to prove or disprove the offence charged against the prisoner." So where it was proposed on the part of the prosecution to confirm the accomplice as to the mode in which the felony was committed, Williams, J., said that something ought to be proved tending to

(a) Eng. Com. L. Rep. xiv. 153. (b) 1 Eng. C. C. 251. (c) Eng. Com. L. Rep. xxv. 452.

bring the matter home to the prisoners, and that proving by other witnesses that the robbery was committed in the way described by the accomplice was not such a confirmation as would entitle his evidence to credit, so as to affect other persons-which indeed would be no confirmation at all, since every one would give credit to a man avowing himself a principal felon, for at least knowing how the felony was committed. Webb's case, 6 C. and P. 595 (a). In a more recent case, Alderson, B., observed, that there is a great difference between confirmations as to the circumstances of the felony, and those which apply to the individuals. charged; the former only prove that the accomplice was present at the commission of the offence; the latter show that the prisoners were connected with it. The learned baron in summing up said, the confirmation of the accomplice as to the commission of the felony was really no confirmation at all, and that the confirmation which he always advised juries to require, was a confirmation of the accomplice in some fact which went to fix the guilt on the particular persons charged. After stating the facts of the case as affecting the two prisoners, the same judge told the jury, that if they thought the accomplice was not sufficiently confirmed as to one they would acquit that one, and if they thought he was confirmed as to neither, they would acquit both. Wilkes's case, 7 C. and P. 272 (b). In a previous case before the same learned baron, where a thief and receiver were jointly indicted, he stated that confirmation *as to the [*146] thief did not advance the case against the receiver. Moore's case, 7 C. and P. 270 (c); and see Well's case, M. and M. 326. In Farler's case, 8 C. and P. 106 (d). Lord Abinger, C. B., said he was decidedly of opinion, and always had been and would be, that there must be a corroboration of the accomplice as to the particular prisoner. So on an indictment for stealing a lamb, where the only evidence to confirm the accomplice's statement was the finding of the skin of the lamb in the field where it had been kept, Gurney, B., held it not sufficient, and observed, that in the majority of recent cases it was laid down that the confirmation should be as to some matter which went to connect the prisoner with the transaction. Dyke's case, 8 C. and P. 261 (e); see also Kelsey's 2 Lew. C. C. 45.

According to the authorities cited above, by which probably all judges will consider themselves bound, the present rule of practice is to require the accomplice to be confirmed upon some point affecting the prisoner charged, and that when several prisoners are jointly indicted, the confirmation must extend to all of them before all can be safely convicted. Indeed," observes Mr. Phillips, "it would be difficult to assign a satisfactory ground for requiring confirmation as to a prisoner indicted alone, and dispensing with confirmation as to prisoners jointly indicted; the same reasons which render confirmation necessary in the former case appear to require it in the latter if a distinction between the two cases were to be allowed, a prisoner's acquittal or conviction upon an accomplice's testimony, might depend upon the mere accident of his being indicted alone or jointly with others." Phill. Ev. 37, 8th ed.

On an indictment for manslaughter at a fight, it was objected that all persons who had been present were principals in the second degree, and

(a) Eng. Com. L. Rep. xxv. 556. (b) Id. xxxii. 507. (c) Id. xxxii. 507. (d) Id. xxxiv. 314. (e) Id. xxxiv. 381.

that their evidence ought to receive confirmation as in the case of accomplices, but Patteson, J., was of opinion that they were not such accomplices as would require any further evidence to confirm them. Hargrave's case, 5 C. and P. 170 (a).

Accomplice-confirmation by whom.] The practice of requiring the evidence of an accomplice to be confirmed appears to apply equally when two or more accomplices are produced against a prisoner. In a case where two accomplices spoke distinctly to the prisoner, Littledale, J., told the jury that if their statements were the only evidence, he could not advise them to convict the prisoner, adding, that it was not usual to convict on the evidence of one accomplice without confirmation, and that in his opinion it made no difference whether there were more accomplices than one. Noakes's case, 5 C. and P. 326 (b). In a late case it was held by Mr. Justice Park, that a confirmation by the wife of an accomplice was insufficient, as the wife and the accomplice must be considered as one for this purpose. Neale's case, 7 C. and P. 168|(c); see also Jellyman's case, 8 C. and P. 604 (d).

Accomplice-situation of an accomplice when called as a witness.] [*147] *Where a prisoner, arraigned for treason or felony, confessed the fact before plea pleaded, and appealed or accused others his accomplices in the same crime, this practice, which was termed approvement, and which was only admitted at the discretion of the court, entitled him to pardon. But as the practice of appeal in cases of treason and felony is now abolished (69 Geo. 3, c. 46,) this consequence of it has also ceased. The practice now adopted is, for the magistrate before whom the accomplice is examined, or for the court before which the trial is had, to direct that he shall be examined, upon an understanding that if he gives his evidence in an unexceptionable manner, he shall be recommended for a pardon. But this understanding cannot be pleaded by him in bar of an indictment, nor can he avail himself of it at his trial, for it is merely an equitable claim to the mercy of the crown, from the magistrate's express or implied promise of an indemnity upon certain conditions that have been performed. It can only come before the court by way of an application to put off the trial, in order to give the party time to apply elsewhere. Rudd's case, Cowp. 331, 1 Leach, 115, S. C. So where two prisoners, under sentence for murder, on being brought before the K. B. by habeas corpus were asked what they had to say, why execution should not be awarded against them, and one of them pleaded, ore tenus, that the king, by proclamation in the Gazette, had promised pardon to any person except the actual murderer, who should give information whereby such murderer should be apprehended and convicted; and that he not being the actual murderer had given such information, and thereby entitled himself to the pardon; such plea, on demurrer ore tenus, by the attorney general was held not sufficient. Garside's case, 2 A. and E. 266 (e). After giving his evidence, but not in such a way as to entitle him to favor, an accomplice may still be indicted for the same offence, (see post,) and though he may have conducted himself properly, he is liable to be proceeded against for other offences. Thus, where an accom

(a) Eng. Com. L. Rep. xxiv. 260. (b) Id. xxiv. 342. (c) Id. xxxii. 481. (d) Id. xxxiv. 547. (e) Id. xxix. 84.