Page images

on a charge of


on a charge of desertion,

that specified in the charge, yet for the purpose of ascertaining the identity of the person, it is often important to shew that other goods, which had been upon an adojoining part of the premises, were taken in the same night, and afterwards found in the prisoner's possession. This is strong evidence of the prisoner having been near the prosecutor's house on the night of the robbery ; and, in that point of view, it is material. Thus also, on an indictment for the crime of arson, it may be shewn that property, which had been taken out of the house at the time of the firing, was afterwards found secreted in the

possession of the prisoner.'

On a charge of desertion, it may be admissible to enquire into the fact of (not the facts attending) a highway robbery, committed by the prisoner on the night he absented himself, and for which he had been tried and convicted by a civil court. The crime of desertion, depending on the intention not to return, might be evinced, in connection with other circumstances, by the commission of a heinous offence. Although such evidence may be with propriety adduced to prove the intention of the accused, yet it must be quite obvious that the commission of the most flagrant offence cannot operate as to the amount or nature of punishment, unless the offender be charged with and placed on his trial for the same.

On an indictment for murder, former attempts of the defendant to assassinate the deceased are

on a charge of murder;

(1) 1 Phil. 173. (2) A conviction of highway robbery in the United Kingdom would, from the sentence awarded, in all probability preclude the expediency of a subsequent trial for desertion; but within the experience of the author, the case supposed has actually occurred.

admissible in evidence; all former menaces of the defendant or expressions of vindictive feeling towards the deceased, or in fact, the existence of any motive likely to instigate him to the commission of the offence in question.'

In support of a charge for malicious, disrespectful, or unbecoming language, addressed verbally, or written to, or used of, a commanding officer at a stated time, or in a particular letter; after the words charged have been proved, the prosecutor may prove also that the accused spoke or wrote other disrespectful or malicious words on the same subject, either before or afterwards, or that he published or disseminated copies of the letter set forth as disrespectful in the charge. This evidence is admissible, not in aggravation of the crime charged, but for the purpose of proving deliberate malice or disrespect, which motives are imputed in the charge. So, on an indictment for maliciously shooting, if it be questionable whether the shooting was by accident or design, proof may be given that at another time the prisoner intentionally shot at the same person.

Where intention is put in issue by the nature Con luct and of the charge, as where a prisoner is charged prisoners on with treason, or with a design to undermine the cocasions not influence of the commanding officer, an enquiry may

be allowed into the conduct and sentiments of the prisoner on particular occasions, but still with reference to the overt act charged and to the transactions which are proved against him.

(1) Archbold, 73. (2) 1 Phil. 184. Libel. (3) Rex v. Voke. Russ and Ry. 531.

on a charge of Conspiracy;

The intention of one particular act may be best evinced by other contemporaneous actions ; but in acting on this necessary relaxation of the maxim under consideration, great caution is necessary to prevent injustice to the prisoner, by extending the enquiry to matter not connected collaterally with the charge. It would be the height of injustice to allow such an attack upon the prisoner, as would involve the necessity of his entering unprepared and at once upon the defence of every action of his life.

On a prosecution for a crime, the proof whereof is supposed to consist wholly, or in part, of evidence of a conspiracy entered into by the party then under trial, so that the conspiracy is to be given in evidence against him; general evidence of the existence of the conspiracy charged may be received in the first instance, though it cannot affect such defendant, unless brought home to him, or to an agent employed by him.

On the consideration of a charge of mutiny, or exciting mutiny, it may be important to ascertain how far the acts or declarations of co-mutineers, in furtherance of a concerted scheme, may be received in evidence against a particular individual, testimony having been previously offered of the existence of a plot, and of the connection of the accused therewith. It is very obvious that no precedents, derived from common law courts, can, in any case, more closely and aptly apply, than will the rules of evidence on trials before courts of civil judicature for treason and conspiracies, to trials before courts martial for (1) i Phil. 194.

(2) The Judges, Queen's trial.

Acts or declarations of co-mutineers, analagous to

Acts and

mutiny and sedition. The following important and conclusive observations are extracted from Mr. Phillips' work on evidence, the information of which will be very largely used in the course of these remarks. In prosecutions for conspira- declarations of cies, it is an established rule, that where several co-conspirator ; persons are proved to have combined together for the same illegal purpose, any act done by one of the party, in pursuance of the original concerted plan, and with reference to the common object, is, in the contemplation of law, as well as in sound reason, the act of the whole party; and, therefore, the proof of such act will be evidence against any of the others, who were engaged in the same general conspiracy, without regard to the question, whether the prisoner is proved to have been concerned in that particular transaction. This kind of evidence was received on the trial of lord Stafford, and of lord Lovat; on the trials for high treason at the Old Bailey, in 1794: and in the case of Stone, in 1796; in which last case the rule was completely settled. In that case, evidence having been given sufficient for the jury to consider whether the prisoner was engaged in a conspiracy for treasonable purposes, it was determined, that a letter, written by one Lotter written of the conspirators, in pursuance of the common admissible, design, (although the letter had not been traced into the hands of the prisoner, or to his knowledge,) was admissible in evidence, as the act of the prisoner himself. The acts of the several conspirators, who are engaged with the prisoner in one common object, are evidence against him, though he may not have been directly a party to them: they are evidence, as acts connected with,

by a conspirator



Declarations by and in conformity with, his own acts. The same

rule, subject to the same limitations, must apply to the declarations of conspirators, as well as to their acts. Any declarations made by one of the party, in pursuance of the common object of the conspiracy, are evidence against the rest of the party, who are as much responsible for all that has been said or done by their associates, in carrying into effect the concerted plan, as if it had been pronounced by their own voice or executed by their own hand. These declarations are of the nature of acts; they are, in reality, acts done by the party; and generally they are far more

mischievous than acts which consist only in corConsultations by poral agency. All consultations, therefore, caroo-conspiratura; ried on by one conspirator, relative to the general

design, and all conversations in his presence, are evidence against another conspirator, though absent. What one of the party may have said, not in furtherance of the plot, but as a mere relation of some past transaction, or as to a share which some of the others have had in the execution of the common design, cannot, it is conceived, be admitted in evidence to affect other persons. Upon this principle it has been ruled, that a letter, being a narrative of what has passed at a meeting, and not written in prosecution of the plot, could not be received in evidence.

In the trial of Watson, some papers, containco-conspiratora. ing a variety of plans and lists of names, which

had been found in the house of a co-conspirator before the apprehension of the prisoner, and which had a reference to the design of the conspiracy, and were in furtherance of the plot,

Papers fourd in the house of

(1) I Phil. 96.

« EelmineJätka »