SEC. VI. Of Accomplices. (x)1 The practice of admitting the testimony of accomplices and the promise of pardon, express or implied, under which they usually give their evidence, were introduced instead of the ancient system of approvement, which Lord Hale, in his pleas of the Crown, speaks of as having been already long disused. (y) Approvement was when a prisoner, arraigned for treason or felony, confessed the fact before plea pleaded, and appealed or accused others his accomplices of the same crime, in order to obtain his pardon. (*) He was also bound to discover on oath, not only the particular crime charged upon him, but all treasons and felonies of which he could give any information. (a) It was purely in the discretion of the Court to permit the approvement or not; if they allowed it, the party accused was put on his trial: whereon, if he was convicted, the approver had his pardon ex debito justitiæ: (b) if he was acquitted, the approver received judgment of death upon his own confession of the indictment. (c) All the good that could be expected from this method of approvement is now more fully provided for and secured by one of the following methods: 1st, By special proclamation in the Gazette or otherwise, pardon is sometimes promised upon certain conditions. Accomplices within this class have a right to pardon. (d) 2ndly, By the practice most usually adopted accomplices are admitted to give evidence for the Crown, under an implied promise of pardon, on condition of their making a full and fair confession of the truth. (e) On a strict and ample performance of this condition, to the satisfaction of the judge presiding at the trial (although they are (x) Before the Act, by which a person convicted of a crime is not incompetent as a witness on that account, an accomplice was a competent witness before conviction and judgment. R. v. Castell Careinion, 8 East, R. 77. 2 Hawk. P. C. c. 46, Ss. 94, 95. Tong's case, Kel. 17, 18. 1 Hale, P. C. 303, 304. 1 Phill. Ev. 28. R. v. Westbeer, 1 Leach, 12. R. v. Russell, R. & M. 356. And this was so, though he was indicted, if not put on his trial at the same time with the prisoner against whom he gave evidence. Bilmore's case, 1 Hale, 305. R. v. Clark, ibid. note. Stark. Ev. 12. And see R. v. Lyons, 9 C. & P. 555, post, p. 661. Sir Percy Cresby's case, 1 Hale, P. C. 303. 1 Phill. Ev. 28. No promise of pardon or reward rendered a witness incompetent. 2 Hale, P. C. 280. Tong's case, Kel. 17. Layer's 2 case, 6 St. Tr. 259. 2 Hawk. P. C. c. 46, s. 135. 1 Hale, P. C. 304. 1 Phill. Ev. 27. (y) 2 Hale, 226. (2) 4 Blac. Com. 330. (d) R. v. Rudd, Cowp. 334, by Lord AMERICAN NOTE. 1 See Brown v. C., 2 Leigh, 769. P. v. Dyle, 21 N. Y. 578. S. v. Howard, 32 Verm. 380. Myers v. P., 26 Ill. 173. P. v. Garnell, 29 Cal. 622. Sumpter v. S., 11 Fla. 247. S. v. Thornton, 26 Iowa, 79. Foster v. P., 18 Mich. 266. Parsons v. S., 43 Geo. 197. Lopez v. S., 34 Texas, 133. S. v. Litchfield, 58 Maine, 267. not of right entitled to pardon), they have an equitable title to a recommendation for the Queen's mercy. (f) They cannot plead this in bar to an indictment against them, nor can they avail themselves of it as a defence on their trial, though it may be made the ground of a motion for putting off the trial, in order to give the prisoner time for an application in another quarter. (g) And if an accomplice, after being received as a witness against his companions, breaks the condition on which he is admitted, and refuses to give full and fair information, he will be sent to trial to answer for his share of guilt in the transaction. (h) It is not a matter of course to admit an offender as witness on the trial of his associates, not even after he has been so allowed by the committing magistrate. The practice is (where the accomplice is in custody) for the counsel for the prosecution to move that the accomplice be allowed to go before the grand jury, pledging his own opinion, after a perusal of the facts of the case, that his testimony is essential. (1) And it is in the (f) Ibid. The equitable claim to pardon does not protect an accomplice from prosecutions for other offences, in which he was not concerned with the prisoner, but it is entirely in the discretion of the judge whether he will recommend the prisoner to mercy. R. v. Lee, R. & R. 361. R. v. Brunton, ibid. 454. S. C. MS. Burn's Just. by Chetwynd, tit. Approver. With respect to such offences, therefore, he is not bound to answer on his cross-examination. West's case, MS. 1 Phill. Ev. 28. Where an accomplice made a disclosure of property, which was the subject-matter of a different robbery by the same parties, under the impression that by the information he had previously given as to the robbery of other property he had delivered himself from the consequences of having the property he so disclosed in his possession; Coleridge, J., recommended the counsel for the prosecution not to proceed against the accomplice for feloniously receiving such property. Garside's case, 2 Lew. 38. In England principals have frequently been allowed to become witnesses against accessories. See Wild's case, 1 Leach, 17, note (a). And cases frequently occur where the accessory is far the more guilty party; as where young persons have been induced to commit crimes by the procurement of old offenders and in such cases the young persons are not unfrequently admitted as witnesses for the Crown.1 (g) 1 Phill. Ev. 28. (h) Ibid. Moore's case, 2 Lew. 37. In one instance a prisoner, who had made a confession after a representation made to him by a constable in gaol, that his accom plices had been taken into custody, which was not the fact, and who, after having been AMERICAN 1 It has been held in America that if an accomplice appears to have been the prin cipal offender, he will be rejected. P. v. Whipple, 9 Cowen, 707, Greenl. Ev. 426. 2 It has been held in America, that if an accomplice, having made a private con admitted as a witness against his associates, on a charge of maliciously killing sheep, upon the trial denied all knowledge of the subject, was afterwards tried and convicted upon his confession. R. v. Burley, cor. Garrow, B., Leicester Lent Assizes, 1818. And the conviction was afterwards approved of by all the judges. MS. 2 Stark. Ev. 13. So where an accomplice when sworn pretended that he knew nothing of the stealing of a sheep, Coleridge, J., committed him for trial at the next assizes, when he was convicted and transported, upon proof of his statement made to a policeman before he was called as a witness. R. v. Smith, Gloucester Spr. and Sum. Ass. 1841. So where an accomplice, who was called as a witness against several prisoners, gave evidence which shewed that all, except one, who was apparently the leader of the gang, were present at a robbery, but refused to give any evidence as to that one being present, and the jury found all the prisoners guilty; Parke, B., thinking that the accomplice had refused to state that the particular prisoner was present in order to screen him, ordered the accomplice to be kept in custody till the next assizes, and then tried for the robbery. R. v. Stokes and others, Stafford Spr. Ass. 1837. And where an accomplice, who had made a full disclosure of the facts attending the commission of a burglary when before the committing magistrate, refused before the grand jury to give any evidence at all; Wightman, J., ordered his name to be inserted in the bill of indictment, and he was convicted on his own confession. R. v. Holtham and five others, Stafford Spr. Ass. 1843.2 (i) 2 Stark. Ev. 2. If, however, the NOTES. discretion of the Court, under all the circumstances of the case, whether the application be granted or refused. (j) And where one prisoner pleaded guilty, and an application was made to admit him. as a witness against the other; Hill, J., directed the witnesses, who were relied upon to corroborate him, to be called first, and, if their evidence was sufficiently strong, then the accomplice might be examined as a witness. (k) This application is usually made before the bill is taken before the grand jury, and if the application is granted, the accomplice is not included in the indictment. (1) Upon an indictment for conspiracy the Court allowed an acquittal to be taken against some of the defendants in order that they might be called as witnesses for the prosecution. (m) And the same course may be adopted, with the permission of the Court, in a case of felony. (n) Upon an indictment for rape, as soon as the jury were sworn, it was proposed, on the part of the prosecution, that one of the prisoners should be acquitted before the case was gone into, as he was intended to be called as a witness against the other prisoners, and upon this being objected to, on behalf of the other prisoners; Williams, J., (having conferred with Alderson, B.,) said, 'I had little doubt as to the course I ought to take, and my learned Brother entirely agrees with me that this is a matter very much of ordinary occurrence. In cases of this kind the Court, if it sees no cause to the contrary, is in the habit of relying on the discretion of the counsel who conduct the prosecution. I shall, therefore, in this case, entrust it to the discretion of the counsel whether he will have the prisoner acquitted before the case is gone into or not. I think it almost of course.' (0) On an indictment for murder against two prisoners, one of them, accomplice be taken before the grand jury, by means of a surreptitious and illegal order, the indictment so found is good. Doctor Dodd's case, 1 Leach, 155. It is not usual to admit more than one accomplice. Barnsley Rioters' case, 1 Lewin, 5, Parke, J. But under peculiar circumstances three have been admitted. Scott's case, 2 Lew. 36, Lord Denman, C. J. In this case the accomplices spoke to different facts, and no one could prove the whole. See R. v. Noakes, 5 C. & P. 326. (j) 1 Phill. Ev. 29. The Court usually considers not only whether the prisoners can be convicted without the evidence of the accomplice, but also whether they can be convicted with his evidence. If, therefore, there be sufficient evidence to convict without his testimony, the Court will refuse to allow him to be admitted as a witness. So if there be no reasonable probability of a conviction even with his evidence, the Court will refuse to admit him as a witness. Thus where several prisoners were committed as principals, and several as receivers, but no corroboration could be given as to the receivers, against whom the evidence of the accomplice was required; Gurney, B., refused to permit one of the principals to become a witness. R. v. Mellor and others, Stafford Sum. Ass. 1833. So in R. v. Saunders and (k) R. v. Sparks, 1 F. & F. 388. (m) R. v. Rowland, R. & M. N. P. R. 401. So formerly if an accomplice jointly indicted with others pleaded guilty, and was fined by the Court, and paid the fine (in a case where such fine might be imposed by way of punishment, and where the suffering the punishment restored the competency), he might be called as a witness by the other prisoners. R. v. Fletcher, 1 Str. 633. See also R. v. Sherman, C. T. H. 303. 645 without being convicted or acquitted, was called as a witness against the other, who alone was put on her trial, it was held that this might be done; but per Cockburn, C. J.: I felt the force of what was said about the fellow prisoner coming forward to give evidence. without having been first acquitted, or convicted and sentence. passed. I think that was much to be lamented. In all such cases, where two persons are joined in the same indictment, and it is thought desirable to separate them in their trials in order that the evidence of the one may be taken against the other, in order to insure the greatest possible amount of truthfulness on the part of the person who is giving evidence under such remarkable circumstances, I think it would be far better that a verdict of not guilty should be taken first, or if the plea of not guilty be withdrawn, and a plea of guilty received, that sentence should be passed, in order that the mind of the witness may be free from all corrupt influences which the fear of impending punishment and the desire to obtain immunity at the expense of the prisoner might be otherwise liable to produce.' (p) But where R., B., and F. were jointly indicted for blasphemous libel, and B. applied for and obtained a separate trial, it was held that he could call R. and F. as witnesses on his behalf although they ought not to be called as witnesses for the prosecution without taking a verdict of acquittal against them. (9) It being established that an accomplice is a competent witness, the consequence is inevitable, that if credit be given to his evidence, it requires no confirmation from another witness. (r) And therefore, in strictness, if the jury believe the evidence of an accomplice, they may legally convict a prisoner upon it, though it stands totally uncorroborated. (8) But from a consideration of the situation of an accomplice, this doctrine has been greatly modified in practice; and it has long been considered as a general rule of practice that the testimony of an accomplice ought to receive confirmation, and that, unless it be corroborated in some material part by unimpeachable evidence, the presiding judge ought to advise the jury to acquit the prisoner. (t) It has been laid down that this practice of requiring some confirmation of an accomplice's evidence must be considered in strictness as resting only upon the discretion of the judge. (u) And this, indeed, appears to be the only mode in which it can be made reconcileable with the doctrine already stated, that a legal conviction (p) Winsor v. R., L. R. 1 Q. B. 289. 35 L. J. M. C. 121. (q) Per Lord Coleridge, C. J., R. v. Bradlaugh, 15 Cox, C. C. 217. () By Lord Ellenborough in R. v. Jones, 2 Campb. 133. R. v. Hastings, 7 C. & P. 152, Lord Denman, C. J., Parke, J., and Alderson, B. (s) R. v. Atwood, 1 Leach, 464, also cited by Grose, J., in Jordaine v. Lashbrooke, 7 T. R. 609. R. v. Durham, 1 Leach, 478. AMERICAN 1 See C. v. Bosworth, 22 Pick. 397, and contra. P. v. Costello, 1 Denio, 83. Keith R. v. Andrews, 1 Cox, C. C. 183. R. v. case, (t) 1 Phill. Ev. 31. Smith and Davis's Leach, 479, in note (a) to Durham's See per Lord Abinger, C. B., in R. v. Farler, post, p. 647, and R. v. Dunne, 5 Cox. C. C. 507.1 (u) Phill. Ev. 32. By Lord EllenboR. v. rough, R. v. Jones, 2 Campb. 132. Durham, supra. may take place upon the unsupported evidence of an accomplice. But it may be observed that the practice in question has obtained so much sanction from legal authority, that it deserves all the reverence of law,' (v) and a deviation from it in any particular case would be justly considered of questionable propriety. (w) This confirmation need not extend to every part of the accomplice's evidence, for there would be no occasion to use him at all as a witness, if his narrative could be completely proved by other evidence, free from suspicion. But the question is, whether he is to be believed upon points which the confirmation does not reach. And if the jury find some part of his evidence satisfactorily corroborated, this is a good ground for them to believe him in other parts as to which there is no confirmation. (r) So far all the authorities agree; the only point on which any difference of opinion has been supposed to exist, relates to the particular part or parts of the accomplice's testimony which ought to be confirmed. (y) It is well established by the current of recent authorities, that it is not sufficient to corroborate an accomplice as to the facts of the case generally, but that he must be corroborated as to some material fact or facts which go to prove that the prisoner was connected with the crime charged. And where several prisoners are jointly indicted, and the accomplice is corroborated as to some of them, although the jury may give credit to him as to those to whom the corroboration applies, they ought to be directed to pay no attention to the evidence of the accomplice as to those against whom there is no corroboration. (z) Upon an indictment for breaking into a warehouse and stealing a quantity of cheese, an accomplice proved that the thieves took a ladder from certain premises, and it was proved by a witness that the ladder was so taken away, and it was proposed to call other witnesses to confirm the accomplice as to the mode in which the felony was committed. Williams, J., You must shew something that goes to bring home the matter to the prisoners. Proving by other witnesses that the robbery was committed in the way described by the accomplice, is not such confirmation as will entitle his evidence to credit, so as to affect other persons. Indeed, I think it is really no confirmation at all, as every one will give credit to a man who avows himself a principal felon, for, at least, knowing how the felony was committed. It has been always my opinion that confirmation of this kind is of no use whatever.' (a) So where the prisoner was indicted for stealing a lamb, and an accomplice proved that he assisted the prisoner in stealing the lamb, but the only evidence to confirm his statement was that of a witness, who found the skin of the lamb in the field where the lamb had been kept; it was held that the confirmation was insufficient; and upon its being submitted that there was evidence to go to the jury, and R. v. Hastings (b) being cited as shewing that the |