quence of their opinion, Muspratt obtained his majesty's pardon: four of the other prisoners, who received judgment with him, were executed.1 name is forged competent. The person whose name is forged, is a compe- Person whose tent witness in prosecutions for forgery; though competent. previous to the late statute, a release was necessary to render such evidence competent. It is Prosecutor, a general rule in criminal prosecutions, in courts of civil judicature, that the injured party may be a witness: upon the same principle, a prosecutor on a trial before a court martial, (though (1) It appears by a letter of lord Erskine, prefixed to James's collection of sentences of courts martial, that the respite of the prisoner was directed by his majesty on the direct application of the prisoner's attorney; his lordship thus relates the occurrence: "The case of one of the mutineers at Portsmouth I remember more distinctly. He was tried with others, and as it was likely that against one of them who knew the innocence of the person in question, no evidence could be given, I advised the attorney who was employed by him, if that turned out to be so, to apply to the court, on the authority of my opinion, to direct such person to be acquitted, and then to permit him to establish, by his evidence, the innocence of the man in question. This application being accordingly made, the court declared itself to be satisfied, that the course proposed was agreeable to the practice of the courts of criminal law, but not of courts martial; they, therefore, refused to adopt it, and, having no other defence, he was sentenced to be executed. Being then on a visit in the Isle of Wight, and the attorney from Spithead having communicated to me this decision, I dispatched him immediately to Weymouth with a representation to the late king, in which I humbly suggested to his majesty, that the court martial ought to have conformed to the rule established in the common law courts, and implored the king, in the name of the unhappy man who had been unfortunately convicted, to respite the execution and to submit his case to the twelve judges for their decision on it. His majesty, with his usual humanity and enlightened attention to the demands of justice, instantly sent back the attorney with the respite prayed; and the judges having decided unanimously that the conviction was unwarranted, the man was set at liberty. There can be no doubt, that neither in this case, nor in any other of a similar description, could there have been an appeal to any of the courts of justice. It belongs to the king alone to abrogate, or confirm, the sentences of courts martial; but the judgment of his late majesty, so remarkable during his long reign for his faithful and enlightened administration of justice, ought to be received as a precedent hereafter; and I feel great pleasure, therefore, in making this communication; being deeply interested in every thing which concerns the noble profession of my earliest youth." Husband but may give evidence against third parties, though the result may contingently affect one, not if benefit be direct. On a criminal offence against the person of either, husband or wife a competent witness; he may indirectly be materially interested in the result,) is a competent witness; but the court in this, as in all cases of suspicion, will judge of the degree of credibility to be attached to his testimony. Husband and wife are incompetent witnesses for or against each other, in any trial, where one of them may be party; nor are they permitted to give evidence where the evidence may tend to criminate each other collaterally. But the one is a competent witness in a cause between other persons, the result of which may contingently and essentially benefit the other; as a woman, whose husband had been before convicted, was admitted to give evidence against the prisoner, though she expected, that in case of his conviction, her husband would receive a pardon.1 The benefit must be contingent, not direct; two being indicted for burglary, and a witness for the prosecution identifying both the prisoners, they each set up a separate alibi; when it was held, that the wife of one was not a competent witness to prove the alibi of the other, though that alibi was quite unconnected with the alibi set up by her own husband; because, though she did not in terms give evidence for her own husband, yet her testimony went to shake the credit of the witness for the prosecution. As an exception to the general rule, it may be stated, that a wife may give evidence against her husband, in a prosecution for any criminal offence against her person. So also, a woman, taken away and forcibly married, may give (1) 1 Leach, 151. (2) Rex v. Smith, corroborated by the twelve judges, 1826. evidence against the offender, for he is no husband de jure.1 The dying declarations of a wife have been received as evidence against her husband, who murdered her." ness. posecutor witness. It has been erroneously imagined by some wife of the military men, that on a charge before a court competent martial for a breach of military discipline, the wife of the prosecutor is not a competent witHer testimony may be suspicious in an equal degree with that of the prosecutor; but there is no rule or reason to exclude it. The proceedings being at the suit of the crown, as in criminal cases, her evidence would be admitted upon the same principle as that of the prosecutor. Any attempt to deceive may be exposed with greater facility by the opportunity afforded of cross-examining two individuals to the same fact, than if one only was admitted to give evidence: if, therefore, the accused be innocent of the charge, the advantage of separately examining both husband and wife is entirely in his favor. The circumstance of a woman cohabiting with a party, though it affects her credit, does not render her incompetent, or afford ground for rejecting her testimony. The true principle is, that she shall not be excluded unless de jure wife of the party. 3 Woman party, not cohabiting with incompetent; does not No other relation but that of husband and Other relation wife excludes from giving evidence; the testi- incapacitate. mony may be suspicious, but the witness not incompetent. This was most revoltingly exemplified by a trial at Shrewsbury assizes, in 1828, where Joseph Pugh, John Cox, jun., and (1) 1 Hawk. c. 42, s. 9. (2) 2 Leach, 563. (3) 4 Bing, C. P., 610. K K Servant. Impeaching credibility of witness, by direct testimony, by c: 088examination, Robert Cox, were indicted for murdering James Harrison; and John Cox the elder, and Ann Harris, were indicted as accessories before the fact to the same murder. Pugh, the father, was called to convict his son; Ellson. (son of Ann Harris, his wife being a sister of the Coxes,) was called to convict his own mother, father in law, and brothers in law; his wife corroborated his evidence against her own father and brothers; and the evidence of Mary Bateman, the daughter of Ann Harris, tended to confirm the testimony which fixed guilt on her mother. The parties were all found guilty. A servant is a competent witness for or against his master, he having no direct interest; but in a prosecution against a master, from the neglect of the servant, the servant is not competent, as he may subsequently be proceeded against by the master, in an action for damages for the neglect.1 The only modes of impeaching the credit of a witness, are by directly disproving the facts stated by him; by cross-examination; by producing the record of his conviction for some crime; or, by adducing general evidence that he is unworthy of being believed on oath. As to impeaching the testimony of a witness by direct evidence bearing on the charge, it is unnecessary to dilate. The subject of cross-examination has also been previously considered. The remarks made as to putting in proof the record of a conviction for a crime, with the view of rendering a witness incompetent, apply equally to an attempt, by such means, to destroy the credibility of a witness; but there is this obvious difference, that a pardon, or the endurance of the punishment, though it may restore the competency of a witness, cannot operate with equal conclusiveness to retrieve his credibility; the proof of the conviction of crime may more or less influence the degree of confidence to be placed in his testimony. to general witness is Party, whose impugned, may cross-examine, The credit of a witness may be impeached by deposition by the deposition of other witnesses, as to his character. general character, but not as to particular parts of his conduct; for, though every man is supposed to be capable of supporting the one, it is not likely that he should be prepared to answer the other without notice. The regular mode is, to enquire whether they have the means of knowing the former witness's general character, and whether, from such knowledge, they would believe him on his oath. The party whose witness is impugned may cross-examine as to the grounds for such general opinion given, or the opportunities which witness may have had for coming to such conclusion; these questions being replied to generally, a further crossexamination into particular instances is inadmissible. The party impeached may also bring evidence. evidence to rebut the attack, or to attack the character of the impeaching witness. The credit of a witness may be impeached (though not supported) by proof that he has made state- Statements ments out of court, on the same subject, contrary to what he swears at the trial; a letter, therefore, written by him, or a deposition signed by him, may be used as evidence to contradict (1) 1 Phil. 299. (2) Ib. (3) 1 Phil. 300. 3 or produce out of court. |
