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examination. He thereby waives all privileges against criminating himself and against disclosing communications between himself and his counsel touching the offense charged. Both client and counsel may, in such case, be compelled to disclose such communications. Alderman v. People, 4 Mich. 414; Foster v. People, 18 Mich. 266; Hamilton v. People, 29 Mich. 173.

The reason for maintaining such privileges ceases, when one has voluntarily exposed himself by his own testimony, to the very consequences from which it was intended by the privilege to proteet him. To preserve such privilege in such case would be worse than vain, for while it could not help the witnesses, it might, by withholding the only means of contradicting and impeaching him, operate with the greatest injustice towards the party on trial. Jones v. State, 65 Miss. 179.

326. Rights of an Accomplice Giving Evidence for the State. In an application to nolle pros. an indictment against an accomplice who has given evidence for the commonwealth which has led to the conviction of other offenders, it is always competent in order to secure the desired immunity. From a very early period this principle has been recognized in English criminal law and the American courts have followed the precedent with rigid uniformity. Perhaps an exception was made in the case of People v. Faulkner (not reported) where the district attorney, owing to the pressure of public sentiment, refused to nolle pros. the indictment and the accomplice was consequently imprisoned. The facts disclosed were of substantially the following import. On September 20, 1890, Lester B. Faulkner and his brother James were indicted, tried, and convicted on the charge of wrecking the First National Bank of Dansville, N. Y., and were sentenced to five years' imprisonment in the Erie county penitentiary. The case was appealed and while the appeal was pending Lester Faulkner died. So far as James Faulkner was concerned the appeal amounted to nothing and he entered the penitentiary on January 26, 1891. On the trial James Faulkner was a witness against his brother, jointly indicted with him, and it was believed at the time that the conviction of Lester would have been possible without his evidence. It was expected that the prosecuting officers would make a plea for clemency in the case of James because of his testimony; but the people of Dansville demanded the punishment of both brothers and no plea was

made to the mercy of the court. Satisfactory evidence of these facts having been brought to the attention of the Attorney General of the United States, and through him to President Harrison the latter issued an unconditional pardon to the accomplice "because I am advised that the United States having used the prisoner against one jointly indicted (his brother) an equitable right to clemency under the decision of the Supreme Court is established. This right, if it can be called such, could not be enforced, but as it has become a settled rule in criminal procedure, I very reluctantly act upon it." The action of the president is under date of August 2, 1892, and illustrates the tenacity with which our criminal courts adhere to the early precedent. The custom of allowing one criminal to turn state's evidence against another is abominable, and the promise of immunity, express or implied, seems a very vicious sort of bribery, but public officials often resort to this scheme and claim that it serves the ends of justice. The claim for pardon in Faulkner's behalf, therefore, while discreditable to him seems to be good against the government which has used him.

We can find no warrant for this doctrine of exemption either in the legal principles belonging to the subject or in the adjudications—it seems wholly dependent for its effectiveness upon "a doubtful expediency."

Accomplices, although admitted as witnesses for the prosecution, are not of right entitled to a pardon, but have only an equitable right to a recommendation to the executive clemency. United States v. Ford ("Whiskey Cases") 99 U. S. 594, 25 L. ed. 399, and it further appears that the district attorney had no authority to make an agreement that if a person charged with an offense would testify against his accomplices, he should be exempt from prosecution. United States v. Ford ("Whiskey Cases")

supra.

§ 327. Rule as to Co-defendants who have Pleaded Guilty. -An interesting question frequently arises in a criminal prosecution, when it appears that a co-defendant or accomplice has pleaded guilty, but has not been sentenced, and the prosecution wish to call him as a witness.

It has been held that a co-defendant, who has not been tried, cannot be called as a witness for one put on trial separately. Com. v. Marsh, 10 Pick. 57. So it has been held, in New York,

that a party in the same indictment cannot be a witness for his co-defendant, upon his trial, until he has been acquitted or convicted. People v. Bill, 10 Johns. 95. But the reason does not apply to one who, by conviction of his own confession, has ceased to be a party to the issue to be tried. Rex v. Fletcher, 1 Strange, 633. And in a late case, where a co-defendant had pleaded guilty to a charge of house breaking, and was called as a witness, before sentence, he was admitted. Reg. v. George, Car. & M. 111. See also 1 Phil. & Am. Ev. 29, 70.

A recent decision, says: "After a party has been adjudged guilty or not guilty by a verdict, or has voluntarily admitted his guilt by plea, he has no longer any interest in the proceedings in court to determine the guilt or innocence of the others named in the indictment. He has ceased to be a party to the issue to be tried." State v. Jones, 51 Me. 125. But see Henderson v. State, 70 Ala. 23, 45 Am. Rep. 72.

The American courts are not agreed with regard to the question. The leading case in favor of the exclusion of a co-defendant in an indictment as a witness for one of his fellows, who has a separate trial, is that of People v. Bill, 10 Johns. 95. It is there said that "it appears to be a technical rule of evidence, and one well settled, that a party in the same suit or indictment cannot be a witness for his co-defendant until he has been first acquitted, or, at least, convicted." And the court further declares that whether the defendant be tried jointly or separately does not vary the rule. This doctrine, so far as it relates to defendants jointly tried, is, of course, indisputable, but its extension beyond that point I do not think is sustained by any decision which we are bound to receive as a common law guide. Lord Ellenborough, in Rex v. Lafone, 5 Esp. 155, rejected a co-defendant as a witness on a joint indictment for a misdemeanor, although he had let judgment go by default. But this ruling is now universally admitted to be erroneous. In truth, I think it may be said to be incontestable that the English decisions do not warrant the assertion contained in the case of People v. Bill, supra.

The case of People v. Donnelly, 2 Park. Crim. Rep. 182, 1 Abb. Pr. 459, is occasionally cited as an authority sustaining the proposition that a party to the same indictment cannot be examined as a witness and give evidence against a co-defendant to the same indictment. This case was expressly overruled in Wixson

v. People, 5 Park. Crim. Rep. 119, by the general term of the seventh district, and in the latter case it was shown in a careful opinion by the late Mr. Justice Knox, that it was only in cases where the defendants to the indictment were tried together, that one is an incompetent witness in behalf of the other. Such was the case of Rex v. Rowland, 1 Ryan & M. 401. In the cases of People v. Bill, 10 Johns. 95; People v. Williams, 19 Wend. 377 and McIntyre v. People, 9 N. Y. 38, and in those cases in other states which have been decided on the authority of People v. Bill, supra, such as Com. v. Marsh, 10 Pick. 57, and Campbell v. Com. 2 Va. Cas. 314, the witness was offered to be examined in behalf of a co-defendant. Taylor v. People, 12 Hun, 212.

It is said in Lindsay v. People, 63 N. Y. 143, that "accomplices may, in all cases, by permission of the court, be used by the government as witnesses in bringing their confederates and associates to punishment. . . There is no practice in New York requiring a previous application or a formal order of the court to permit an accomplice to become a witness for the state."

Accomplices when under a joint indictment are not competent witnesses for each other. But where a nolle prosequi has been entered against one the disqualification is removed. The reason for excluding him as a witness against his fellow does not apply after his conviction on his own confession as he has then ceased to be a party to the issue. Com. v. Smith, 12 Met. 238. "After a party has been adjudged guilty or not guilty by a verdict, or has voluntarily admitted his guilt by plea, he has no longer any interest in the proceedings in court to determine the guilt or innocence of the others named in the indictment.' He has ceased to be a party to the issue to be tried."" State v. Jones, 51 Me. 125.

If an accomplice being fully aware of his privileges still volunteers as a witness in the case and so gives criminating testimony, he cannot subsequently refuse to answer. "He cannot be allowed to state such facts only as he pleases to state, and so withhold other facts." Com. v. Price, 10 Gray, 472, 71 Am. Dec. 668.

This entire question relating to the evidence of an accomplice is, in many jurisdictions, regulated by statute. Thus in Massachusetts "the accomplice having offered himself as a witness, his testimony was competent for and against the other defendants, as well as himself." Mass. Stat. 1870, chap. 393, § 1, cl. 3. See also Com. v. Nichols, 114 Mass. 285, 19 Am. Rep. 346; Com. v.

Robinson, 1 Gray, 555. The court might permit the commonwealth to introduce any competent evidence at any stage of the trial, even after it had once rested its case. Com. v. Blair, 126 Mass. 40.

$328. Credibility of Accomplice is for the Jury.-The credibility of an accomplice, in respect to all his testimony, is for the jury. They may require corroboration in respect to that part of it in which he states his own connection with the crime. Manifestly if the defense had questionod that, the evidence objected to would have been admissible for that purpose. But the credibility of such a witness is for the jury as to all that he says. Hence any fact or circumstance which tends to corroborate in a slight degree any part of his testimony is admissible. It was so held in State v. Wolcott, 21 Conn. 272. In that case the accomplice detailed two conversations which he had with the prisoners, or one of them, in which they related to him conversations which they had had with third parties. The third parties were admitted to testify that they in fact had such conversations, although there was nothing in either conversation in itself which tended to crim inate the prisoners. The court by Church, Ch. J., say they "showed a privity and connection and a conspiracy between Dickerman and the prisoners," and that Dickerman "was their confidant, to whom they imparted their plans and their motives, as he had testified." State v. Maney, 54 Conn. 178.

§ 329. Evidence of Detectives, Decoys and Spies.—A man who will deliberately ingratiate himself into the confidence of another, for the purpose of betraying that confidence, and, while with words of friendship from his lips, he is seeking by every means in his power to obtain an admission which can be tortured into a confession of guilt, which he may blazon to the world as a means to accomplish the downfall of one for whom he professes great friendship, cannot be possessed of a very high sense of honor, or of moral obligation. Hence the law looks with suspicion on the testimony of such witnesses, and the jury should be specially instructed that in weighing their testimony, greater care is to be exercised than in the case of witnesses wholly disinterested. Preuit v. People, 5 Neb. 377. The weight to be given to such evidence is a question for the jury, and cannot be urged against its admissibility. The confession, however, seems to have been voluntary, although made to one who deliberately and re

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