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plice was admitted to give evidence against a prisoner for receiving stolen goods, and the latter was convicted; and the witness was afterwards prosecuted in another county for horse stealing, and convicted; a doubt arising whether this case came within the equitable claim to mercy, it was referred to the judges, who were unanimously of opinion that the pardon was not to extend to offences for which the prisoner might be liable to prosecution out of the county, and the prisoner underwent his sentence. Duce's case, 1 Burn's Justice, 211, 24th ed. So where an accomplice who had been admitted as a witness against his companions, on a charge of highway robbery, and had conducted himself properly, was afterwards tried himself for burglary, Garrow, B., submitted the point to the judges, whether he ought to have been tried after the promise of pardon; but the judges were all of opinion, that though examined as a witness for the crown, on the application of the counsel for the prosecution, there was no legal objection to his being tried for any offence with which he was charged, and that it rested entirely in the discretion of the judge, whether *to recommend a prisoner in such a case to mercy. Lee's case, [*148] Russ. and Ry. 364 (a), 1 Burn, 212; Bruton's case, Id. 454, S. P. With respect to other offences, therefore, the witness is not bound to answer on his cross-examination. West's case, Phill. Ev. 28, 8th ed., (n.) Where a receiver discovered the principals in a felony under a promise of favor, and also disclosed another felony of the same kind under an impression that by the course he had taken he had protected himself from the consequences, Coleridge, J. recommended the counsel for the prosecutor not to proceed with the indictment against the receiver for such other felony, adding, however, that if it was persisted in he was bound to try the case. The recommendation of the learned judge being yielded to, an acquittal was taken. Garside's case, 2 Lew. C. C. 38.
A prisoner who, after a false representation made to him by a constable in gaol, that his confederates had been taken into custody, made a confession, and was admitted as a witness against his associates, but on the trial denied all knowledge of the subject, was afterwards tried and convicted upon his own confession, and the conviction was approved of by all the judges. Burley's case, 2 Stark. Ev. 12, (n.) (1). So where in a case of burglary an accomplice, who had been allowed to go before the grand jury as a witness for the crown, upon the trial pretended to be ignorant of the facts on which he had before given evidence, Coleridge, J., ordered a bill to be preferred against him, to which he pleaded guilty, and judgment of death was recorded. Moore's case, 2 Lew. C. C. 37.
In Scotland, the course pursued with regard to an accomplice who has been admitted against his confederates differs from that adopted by the English law, and seems better calculated to further the ends of justice. "It has long been an established principle of our law," says Mr. Alison, "that by the very act of calling the socius, and putting him in the box, the prosecutor debars himself from all title to molest him for the future, with relation to the matter libelled. This is always explained to the witness by the presiding judge as soon as he appears in court, and consequently he gives his testimony under a feeling of absolute security, as to the effect which it may have upon himself. If, therefore, on any future
(1) Commonwealth v. Knapp, 10 Pick. 478.
(a) 1 Eng. C. C. 364.
occasion, the witness should be subjected to a prosecution, on account of any of the matter contained in the libel, on which he was examined, the proceedings would be at once quashed by the supreme court. This privilege is absolute, and altogether independent of the prevarication or unwillingness with which the witness may give his testimony. Justice, indeeed, may often be defeated, by a witness retracting his previous disclosures, or refusing to make any confession after he is put into the box, but it would be much more put in hazard, if the witness was sensible that his future safety depended on the extent to which he spoke out against his associates at the bar. The only remedy, therefore, in such a case is committal of the witness for contempt or prevarication, or indicting him for perjury, if there are sufficient grounds for any of these proceedings." Alison, Prac. Cr. Law of Scotl. 453.
Ordering witnesses out of court.] In general, the court will, on the application of either of the parties, direct that all the witnesses but the one under examination shall leave the court (1). And the right of either party to require the unexamined witnesses to retire may be exercised at any period of the cause. Per Alderson, B., Southey v. Nash, 7 C. & P. 632 (a). It is said, that with regard to a prisoner, this is not a matter of right, 1 Stark. Ev. 163, 2d ed., 4 St. Tr. 9. But whether it be a matter of right or of discretion for the judge, in practice the case of a prisoner forms no exception to the general rule. The rule has been held not to extend to the attorney in the cause, who may remain, and still be examined as a witness, his assistance being in most cases necessary to the proper conduct of the cause. Pomeroy v. Baddeley, Ry. and Moo. N. P. C. 430 (b). Though in one case, Best, J., decided the other way. Webb's
(1) People v. Duffy, 1 Wheeler's C. C. 123.
It does not, howto allow [ *150 ]
case, Sarum Summ. Ass. 1821, 1 Stark. Ev. 63, 2d ed. ever, *appear, that in this case, application was made the witness to remain. Ry. & Moo. N. P. C. 431 (a). So as it seems, a physician, or other professional person who is called to give an opinion as a matter of skill, upon the circumstances of the case, may be allowed to remain. By the law of Scotland, a medical witness is directed to remain in court during the trial, till the medical opinion of other witnesses begins. Alison's Prac. Crim. Law of Scotl. 489.
If a witness remains in court after an order made for the witnesses on both sides to withdraw, it is an inflexible rule in the Court of Exchequer, that such a witness shall not be allowed to be afterwards examined. Att. Gen. v. Bulpit, 9 Price, 4. It appears, however, that the rule in the Exchequer is confined to revenue cases, and that, in other cases, the rule is the same as it is in other courts, namely, that the rejection of the evidence is entirely in the discretion of the judge; per Coleridge, J., Thomas v. David, 7 C. and P. 350 (b); and that it is for him to say, whether, under all the circumstances of the case, he will relax the order which has been given. Parker v. M'William, 6 Bingh. 683 (c); Colley's case, Moo. and Malk. 329 (d). This is said to have been so ruled by Bayley, J., in a criminal case, on the Northern circuit, after consulting with Holroyd, J. Moo. and M. 329 (1).
Where all the witnesses had been ordered out of court, but one of them came into court, and heard the evidence of another witness, Taunton, J., allowed him to be examined as to such facts, as were not spoken to by the other witness. Beamon v. Ellice, 4 C. and P. 585 (e). But in a later case, it was said by Park, J., that in a criminal case, he would always reject a witness remaining in court, after all the witnesses on both sides had been ordered to leave it. Wyld's case, 6 C. and P. 380 (ƒ).
In a case before Alderson, B., that learned judge stated that the circumstance of a witness having remained in court in disobedience of an order to go out, is no ground for rejecting his testimony, but merely affords matter of observation upon it, and the learned Baron referred to a case in the K. B., where a new trial had been granted, because the evidence of a witness had been rejected on that ground. Cooke v. Nethercote, 6 C. and P. 741 (g).
"It is almost a matter of right for the opposite party to have a witness out of court while a discussion (legal argument) is going on as to his evidence." Per Coleridge, J., Murphy's case, 8 C. and P. 307 (h).
Calling all witnesses whose names are on the indictment, &c.] Although a prosecutor is not in strictness bound to call every witness whose name is on the back of the indictment, Simmonds' case, 1 C. and P. 84 (i), Whitbread's case, Id. 84 (n.) (k), yet it is usual to do so, in order to afford the prisoner's counsel an opportunity to cross-examine them; Simmond's case, supra; and if the prosecutor will not call them the judge in his discretion may. Id. Taylor's case, Id. (n.) (l); Bodle's case, 6 C. and P. 186 (m). The practice now almost invariably adopted is, for the prosecutor's counsel to put the witnesses *he has not called into the [*151 ]
(1) State v. Sparrow, 2 Murph. 487.
(a) Eng. Com. L. Rep. xxi. 482. (e) Id. xix. 537. (f) Id. xxv. 447 (k) Id. () Id. (m) 1d. xxv. 347.
(c) Id. xix. 204. (d) Id. xxii. 325, (h) Id. xxxiv. 402. (i) Id. xi. 322.
box for the purpose of being cross-examined, or at least to offer to do so should the other side think it desirable. It seems that where a witness is called at the instance of the prisoner's counsel, and the counsel for the prosecution does not ask him a question, that the latter is entitled to examine the witness after he has been examined on the part of the prisoner. Harris's case, 7 C. and P. 581 (a). But from a case there referred to, it would appear to be otherwise, where, on the refusal of the counsel for the prosecution, the witness has been called by the judge. If, after the witness has been cross-examined by the prisoner's counsel, the counsel for the prosecutor puts any questions to him, this must be considered as a reexamination, and he can ask no questions which do not arise out of the cross-examination. Per Littledale, J., Beezley's case, 4 C. & P. 220 (b). Where a witness has been called at the instance of the prisoner's counsel, and cross-examined by him, the latter will not be allowed to call witnesses to contradict the witness. Per Gaselee, J., Bodle's case, 6 C. and P. 186 (c).
Calling all parties present at any transaction giving rise to a charge of homicide.] On a trial for murder, where the widow and daughter of the deceased were present at the time when the fatal blow was supposed to have been given, and the widow was examined on the part of the prosecution, Patteson, J., directed the daughter to be called also, although her name was not on the indictment, and she had been brought to the assizes by the other side. The learned judge observed, "Every witness who was present at a transaction of this sort ought to be called, and even if they give different accounts, it is fit that the jury should hear their evidence, so as to draw their own conclusion as to the real truth of the matter." Holden's case, 8 C. and P. 606 (d). And it seems that the same course should be pursued even when the party is a near relative of the prisoner, as a brother, Chapman's case, 8 C. and P. 559 (e); or a daughter. Orchard's case, Id. (n.) (ƒ).
In Holden's case it appeared that three surgeons had examined the body of the deceased, and that there was a difference of opinion among them. Two of them were called for the prosecution, but the third was not, and as his name was not on the indictment, the counsel for the prosecution declined calling him. Patteson, J., said, "He is a material witness who is not called on the part of the prosecution, and as he is in court, I shall call him for the furtherance of justice." He was accordingly examined by the learned judge.
Recalling and questioning witnesses by the court.] It has already appeared (supra) that the judge may in his discretion, for the furtherance of justice, call witnesses, which the counsel for the prosecution has refused to put into the box. So he may recall witnesses that have already been examined. But where, after the examination of witnesses to facts on behalf of the prisoner, the judge (there being no counsel for the pro[*152] secution) called back and examined a witness for *the prosecution, it was held that the prisoner's counsel had a right to cross-examine again if he thought it material. Per Taunton, J., Watson's case, 6 C. and P. 653 (g).
So during the progress of the trial the judge may question the witnesses, (a) Eng. Com. L. Rep. xxxii. 640. (b) Id. xix. 353. (c) Id. xxv. 347. (d) Id. xxxiv. 547. (e) Id. xxxiv. 523. (f) Id. (g) Id. xxv. 580.
and although the prosecutor's counsel has closed his case, and the counsel for the defendant has taken an objection to the evidence, the judge may make any further inquiries of the witnesses he thinks fit, in order to answer the objection. Remnant's case, R. and R. 136.
Evidence cannot be taken in cases of felony by consent, but in cases of misdemeanor it may.] Where there were two prosecutions against the prisoner for felony, and his counsel offered to admit the evidence taken on the first trial, as given in the second, Patteson, J., doubted whether that could be done, even by consent in a case of felony, but the learned judge directed the witnesses to be re-sworn, and read their evidence over to them from his notes. Foster's case, 7 C. and P. 495 (a). In cases of misdemeanor, evidence may be taken by consent. Per Patteson, J., Fos-, ter's case, supra. Where, however, on an indictment for perjury, it appeared that the attornies on both sides had agreed that the formal proofs should be dispensed with, and part of the prosecutor's case admitted, Lord Abinger, C. B., said, "I cannot allow any admission to be made on the part of the defendant, unless it is made at the trial by the defendant or his counsel." The defendant's counsel declining to make any admission the defendant was acquitted. Thornhill's case, 8 C. and P. 575 (b).
At what time the objection to the competency of a witness must be taken.] It was formerly considered necessary to take the objection to the competency of a witness, on the voire dire, and if once examined in chief, he could not afterwards be objected to on the ground of interest. Lord Lovat's case, 9 St. Tr. 639, 646, 704; Phill. Ev. 148, 8th ed.; but in modern practice the rule has been relaxed. The examination of a witness, to discover whether he be interested or not, is frequently to the same effect as his examination in chief, so that it saves time, and is more convenient to let him be sworn in the first instance in chief; and in case it should turn out that he is interested, it is then time enough to take the objection. Per Buller, J., Turner v. Pearte, 1 T. R. 719; Pengal v. Nicholson, Wightw. 64, 4 Burr. 2256. So in Stone v. Blackburne, 1 Esp. 37, it was said by Lord Kenyon, that objections to the competency of witnesses never come too late, but may be made in any stage of the cause (1). It was ruled, however, by Gibbs, C. J., that after a witness has been examined, and cross-examined, and has left the box, and is recalled, for the purpose of having a question put to him by the judge, it is too late to object to his competency. Beeching v. Gower, Holt, N. P. C. 314 (c); Ibid. 485 (d), 4 Burr. supra; but see per Gibbs, C. J., 8 Taunt. 458 (e). It should also be observed, that where the objection is taken upon the examination in chief, or *cross-examination, the [*153] privilege of examining the party to the contents of a written instrument not produced, is not allowed, as upon an examination on the voire dire. Howell v. Lock, 2 Camp. 14.
(1) Morton v. Bealls's Adm., 2 Har. and Gill. 136. Bank of N. America v. Wikoff, 2 Yeates, 39, S. C. 4 Dall. 151. Swift v. Dean, 6 Johns. 523. Fisher v. Willard, 13 Mass. 379. Evans v. Eaton, Peters' C. C. Rep. 338. Baldwin v. West, Hardin, 50. Cole v. Cole, 1 Har. & Johns. 572. Butler v. Tufts, 13 Maine, 302. That objection to competency on the score of conviction of an infamous crime must be taken before the witness is sworn, see People v. M'Garrer, 17 Wend. 460.
(a) Eng. Com. L. Rep. xxxii. 598.
(b) Id. xxxiv. 532. (c) Id. iii. 117. (d) Id. iii. 164. (e) Id. iv. 165.