Proof of incompetency from infamy. Competency from infamy how restored; either have suffered the punishment awarded to the offence, or have experienced a pardon. In consequence of the difficulty of producing formal proof of infamy, witnesses are not often rejected from this cause, although the crossexamination as to the fact of previous convictions, produces all the effect of discrediting him which can be desired, and equally acts as a safeguard by forewarning the court to be cautious in receiving the testimony of an infamous witness. The competency of a witness may be restored by pardon, either by act of parliament, or under the great seal, or by warrant under the royal sign manual, countersigned by a secretary of state. If the pardon be conditional, it must be shewn that the condition is performed. A reversal of judgment upon a writ of error, also restores the competency of a witness. And it is enacted, that every punishment for felony, except perjury after it has been endured, shall have the effect endurance of punishment restores competency, and subornation thereof; Incompetency from interest. of a pardon under the great seal; and that no misdemeanor, except perjury or subornation of perjury, shall render a party an incompetent witness, after he has undergone the punishment.3 As to interest, it is difficult under any circumstances, but particularly within the consistent limits of this sketch of the law of evidence, to define that degree which will disqualify or render a witness incompetent. It is not perhaps necessary, as regards the practice of courts martial, to enter very fully into the question, as few (1) 7 and 8 Geo. 4, c. 28, s. 13. (2) 1 Phil. 30. cases are likely to occur which may not safely be left to attach to credibility only. By the practice of the courts of civil judicature of late, the objection goes to credibility, rather than to competency. A direct interest in the event of the trial, as a promise of a sum of money, or a place, or pension to himself or any of his family, renders a witness incompetent, but remote or secondary interest is insufficient. And it is a general rule in criminal prosecutions (in which light, prosecutions before courts martial must always be held,) that the injured party may be a witness; although, on the conviction of the prisoner, he will be entitled to a reward. Informers, entitled under penal statutes to part of the penalty or statutory pardon, are now admitted by express provision in those statutes to give evidence, and especially where, without their testimony, the statute would be rendered ineffectual by the impossibility of proof; but (1) Lord Mansfield, quoted by Phillips, vol. 1, p. 44.-There is much reason in the following ideas of Mr. Bentham, who would, in all cases, set aside the incompetency of witnesses, and leave attending circumstances to attach to credibility: "Mais, dira-t-on, une impro bité reconnue, prouvée juridiquement, une improbité signalée par un faux témoignage, ne doit-elle pas ètre une cause d'exclusion? Un homme flétri pour un faux, pour un parjure, peut-il être admis á l'honneur de témoigner? peut-il mériter même créance? La réprobation qui repousse un pareil témoin, n'est-elle pas un sentiment universel? Je reponds à cela, que plus ce témoignage est suspect, moins il est dangereux : il suffit que la circonstance du délit antérieur qui dégrade sa crédibilité, soit mise sous les yeux du tribunal. Il n'est pas à craindre qu'avec un tel préjugé contre lui, ce témoin obtienne, de la part d'un jury par exemple, trop de confiance. Il ne faudra rien moins que la déposition la plus claire, la plus soutenue, la plus liée avec tous les autres faits de la cause, pour entraîner une conviction combattue par cette espèce de contre-témoignage, résultant du caractère du témoin. Examinez d'ailleurs si les circonstances de son délit sont de nature á affecter son crédit dans le cas actuel. Il a rendu un faux témoignage, mais c'était pour sa propre défense, ou pour celle d'une personne qui lui était chère. S'ensuit-il que, sans intérêt, il se portera au même crime pour attaquer la vie d'un inconnu ?"-Traité des preuves judiciaires, tome 2, p. 148. (2) 1 Phii. 119. Persons separately charged on by the common law, such informers were incompetent.1 It is a rule in criminal courts, which also identical crime. prevails on courts martial, that where several persons are charged separately on the same crime, though it be on an indictment for perjury, in swearing to the same fact, those not convicted may be admitted as witnesses in favor of the individual, on his trial.2 Testimony of accomplice. Prisoners collectively arraigned. The evidence of an accomplice, against his associate in crime, is received with caution; it requires confirmation by unimpeachable testimony, in some material part; but where the testimony of an accomplice is thus confirmed, it affords ground for believing that he speaks the truth in other points, and with respect to facts, as to which there may be no confirmation.3 Persons collectively arraigned are incompetent witnesses for each other; yet, in criminal prosecutions, where there are several defendants on trial, and it appears, on closing the evidence on the part of the crown, that against one or more of them there has been no evidence to convict, the court will, in its discretion, direct an issue to go up to the jury, on the part of the defendant, or defendants, against whom no evidence had appeared; and, on a verdict of not guilty being recorded, will suffer such defendant or defendants, so acquitted, to give evidence on the part of the prisoner, or prisoners, remaining on trial at the bar. This custom in civil courts, though founded on reason and justice, cannot, from the necessity of subsequent (1) 1 Phil. 125. desiring of soldier involved in the same charge, how to act. approval of the sentence, to render the same valid, and the consequent delay incident thereto, be acted on to the full extent by military courts; but, if such a case should arise on a court martial, the evidence producible proving inadequate or impeachable, there can be little doubt but that the court may proceed to pass judgment on the individual whose testimony is deemed essential, and adjourn for such period as may afford time for confirmation; on the promulgation of which, and the consequent release of the desired witness, the court may reassemble and proceed with the trial. The regular course Prisoner, for a prisoner to adopt, who may desire to avail testimony himself of the evidence of a person involved in the same charge, would be, on the receipt of the copy of the charges, to urge the necessity of his separate trial, with the authority ordering the court martial, and, if not attended to, an application to the court would still be open. Mr. McArthur quotes a case directly in point; Suspratt. it occurred at a naval court martial, where confirmation is not necessary to render the sentence operative; but it is very clear, that the law of the case, being essential to justice, and not a matter of form only, must be precisely the same with reference to all courts martial: William Muspratt, a seaman, was arraigned, with nine others, for mutiny on board his majesty's ship Bounty, also for desertion and running away with the ship. The evidence for the prosecution did not materially affect two of the number, Byrn and Norman, upon which Muspratt, by advice of counsel (now lord Erskine), urged their acquittal, to enable him to call them as Case of witnesses, setting forth the ordinary practice of criminal courts in such cases. The court refused the application upon the principle of its being contrary to the usage of courts martial, to give sentence on a particular prisoner until the whole of the defence of the prisoners was gone through. Muspratt, and five of those tried, were found guilty and sentenced to suffer death; Byrn and Norman, and two others, were acquitted. Whereupon, Muspratt petitioned the admiralty, praying that he might have an opportunity afforded him of laying his case before the throne for mercy. The admiralty deemed it expedient to lay the facts before the attorney general (since lord chief baron Macdonald), the solicitor general (now lord Eldon), the counsel to the admiralty (Mr. Broderick), for their joint or separate opinions, whether there were any objections to the carrying the sentence into execution against Muspratt. They delivered their opinions separately; they concurred that it was the custom of criminal courts, in such cases, for the judge in his discretion to direct the acquittal of an innocent person, to enable him to give testimony, and they inclined to the opinion that Muspratt was entitled to the benefit of a similar proceeding in the case in question; the two former forbore to speak positively, as they suggested the propriety of submitting the case to the judges; the latter delivered his decided opinion that Muspratt was entitled to the advantage of the testimony of Byrn and Norman, and advised the admiralty to interpose in his behalf in obtaining the royal mercy. The twelve judges were appealed to, and in conse |