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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, unsuspeeted 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 bas 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 accoinplice 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 al} 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 ihose 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 (6); 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 charge 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 (6). 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
(4) Eng. Com. L. Rep. xxv.556. (6) 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
hat 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, (sec 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.
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 binself 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-examinatio. 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 bis 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 preserred 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.
*EXAMINATION OF WITNESSES.
Ordering witnesses out of Court
149 | Memorandum to refresh witness's memoCalling all witnesses whose names are on
158 the indictment, &c.
150 | Questions subjecting witness to a civil Calling all parties present at any trans
158 action giving rise to a charge of hom
to a forfeiture
151 to penalties or punishment-whether Recalling and questioning witnesses by
such questions may be put
160 the Court 151 consequence of answering
- 161 Evidence cannot be taken in cases of fel- consequence of not answering - 162
ony by consent, but in cases of mis- objection must be taken by witness dergeaner it may
162 At what time the objection to the compe- Questions tending to degrade
- 162 tency of witnesses must be taken 152 Evidence of general character
- 165 Voire dire
153 | When a party may contradict his own Examination in chief 134 witness
- 165 Cross-examination 155 | Examination as to belief
- 167 Re-examination 157 Examination as to opinion
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, i 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 (6). Though in one case, Best, J., decided the other way. Webb's
(1) People v. Duffy, 1 Wheeler's C. C. 123.