6 & 7 W. 4, c. objected to, on account of any interest he may have in the result of such action, indictment, or other proceeding(a).

55.

minal cases with uplifted hand.

The corrobo

ration of an

accomplice should be in a part of his testimony affecting the prisoner.

of criminal courts, and cited Archb. Pl. & Ev. 156, 5th ed. BUSHE C. J. felt himself bound by the decision of the twelve judges in Rer v. Campbell, viz that whenever an oath is taken, it must be taken in the usual way, by kissing the book, unless when otherwise provided for by statute. Having consulted with MOORE, J, in the next court, he refused to let the witness be examined.

(a) The following cases have been decided upon the law of evidence in criminal cases:

Rez v. Green, Dundalk Lent. Ass. 1825. The prisoner was indicted for the murder of a person named Markey, on the 6th of November, 1824. The dying declaration of Markey was given in evidence, from which it appeared that he had been attacked, robbed, and wounded by two men on his return from market. Hoey, an accomplice, stated minutely the circumstances of the murder, and that having taken a wallet, a pair of brogues, and a piece of cloth from Markey, he and the prisoner returned to Green's house, at Drogheda. That Green desired his wife to pledge the brogues; upon which she went out, and soon after returned, saying that she had done so for two and six pence. Hoey the elder, father of the approver, said that his son and the prisoner had been in his house almost all the day. That towards evening they went out, one about a quarter of an hour after the other, and did not return until after he had gone to bed, which he did about eight o'clock. That, upon his awaking, which he supposed to be about nine o'clock, both were sitting together at the fire. He asked them where they had been, and one of them said, at a dance. The pawnbroker's clerk produced his book, by which it appeared that a pair of brogues had been pawned on the 6th of November for two and six pence, in the name of A. Green.

The learned judge (JEBB J.) in his charge to the jury, after recapitulating the evidence, said—It is clear that the deceased has been murdered by a shot; and the question for you is, whether the approver is corroborated in his account of the part which the prisoner took in the transaction. Although the testimony of an accomplice alone is legal evidence on which a jury may convict, an instance is rarely found in which a jury will be satisfied to convict upon it, because he stands in so degraded a state from the crimes of which he confesses himself guilty, that but little credit is due to him; and the temptation to save his own life is so strong, that he can seldom be trusted, unless corroborated in some material circumstances. But if the jury should be satisfied, from uncontaminated evidence, that he speaks truth in a material particular affecting the prisoner, they may then act on the entire of his testimony. The circumstances in which the accomplice is corroborated are, the description of the transaction itself, the time, the place, and all the particulars of the attack, robbery, &c. with a difference as to the number of shots. The deceased said he believed there were two; the accomplice says there was but one, in which he is corroborated by several other witnesses. But even though you should think that he has deviated from the truth in this particular, with a view to make himself appear less criminal in the transaction than he really was, still it ought not to affect the credit you may give him in another particular in which he is corroboratedand he is corroborated here in many circumstances. The opinion I hold is, that corroboration of the approver in all the general facts of the case is not enough, unless he is also corroborated in some particular attaching guilt to

the prisoner. Here, the approver's father proves that the approver and the prisoner went out that evening, one about a quarter of an hour after the other, and about such a time as would permit them both to arrive at the spot at the time of the murder. In this respect, you have a corroboration affecting the prisoner. He also tells you that about nine o'clock they were both together at the fire, and one of them said they had been at a dance. They were then associates; and the answer of one being heard by the other, was adopted as the answer of both. The father, though not liable to the same objection as his son, yet stands in that situation, which calls on you to investigate his evidence with great care for it may be said that he comes here to confirm the testimony of his son, and thus assist in saving his life. There is another circumstance, that of the brogues. The wife of the prisoner said in his presence that she had pawned the brogues for two and sixpence; and the clerk of the pawnbroker says that a pair of brogues had been pawned that evening in the name of A. Green, for two and sixpence; you will also observe that the prisoner has not given any account of where he passed that evening. Verdict, guilty.

Rex v. Carberry, Armagh Lent Ass. 1826. In this case, the law as to the corroboration of approvers was similarly laid down by Vandeleur, J. who cited it with approbation, as the determination of the majority of the twelve judges, viz, that a corroboration as to the facts of the transaction is not suffi cient unless there be some proof connecting the prisoner with the transaction.

NOTE.

The untrue denial by a prisoner, of

See the Treatise of the learned Chief Baron (Joy) on the evidence of ac. complices; and also R. v. Hastings, 7 C. &. P. 152; R. v. Neal, Id. 168; R. v. Wilkes, Id. 272. Rex v. Farrelly and another, Trim Lent Ass. 1832. Burglary. The prin- bis acquaincipal witness was an approver, named M'Entee. Upon being taken into cus- tance with tody, the prisoners were asked did they know M'Entee, which they positively an approver, is evidence denied. Another witness proved that M'Entee and the prisoners had lived to corrobotogether for several weeks in the same house, which they had taken from rate the the witness. BUSHE, C. J., allowed this to go to the jury as evidence, in cor- approver. roboration of the approver.

Identifica. Rex v. Nash, Maryborough Sp. Com. 27th May 1832. Indictment for tion of a pristabbing with intent to kill. A witness for the prosecution having identified soner at the trial effected the prisoner, was asked whether he had seen him after the commission of by shewing the alleged offence, and, if so, whether any one had pointed him out to the that he is the witness. Counsel for the prisoner objected to both questions, but the court same person whom the (BUSHE, C.J. and SMITH, B.) at once overruled the objection. And the attor- witness had ney general mentioned a case which had occurred at the special commission previously identified. at Galway, in 1831, in which a prisoner had been convicted under these circumstances:-The witness, upon a day between the commission of the offence and the day of trial, identified the prisoner as one of the party concerned in the outrage. But, at the trial, in consequence of some alteration which had taken place in the prisoner's appearance, the witness was unable to identify him. He swore however, that the man whom he had previously identified was engaged in the commission of the offence. Another witness then proved, Evidence that the person so identified was the prisoner.

having been given that an

offence was committed by the pri

In this case the evidence of the prosecutor was, that the prisoner, with about thirty other persons, two of whom he named, broke into his house at night, and that the prisoner stabbed him in the breast with a bayonet. On the part of the prisoner, a witness was produced to prove an alibi for the two per- soner, A. B. sons. The attorney general objected to this evidence; but the court held the being present, proof was evidence to be admissible, and that the presence of the individuals named was admitted of material, and not one of those purely collateral facts, as to which no counter an alibi of A. B. evidence could be adduced.

NOTE.

A person cannot be

examined as

whom he is jointly indicted for.

As to the evidence of identity of a thing stolen, see R. v. Mannak, 1 Law Rec. N. S. 84.

Rez v. Duffy, Monaghan Sum. Ass. 1833. This was a joint indictment against several, for riot and assault. One of the persons who was included in a witness for the joint indictment, but who was not put upon trial, was produced as a witone with ness for the others. Sir T. Staples, for the crown, contended that he was an incompetent witness, having been jointly indicted with the traversers. Holmes, for the prisoners, argued, that it was analogous to the case of co-trespassers; in which case, one might be produced on behalf of the others. BUSHE C.J. said, that he rather thought the very point had been decided by the twelve judges; and that the distinction was, that where several persons are jointly indicted, any one of them, though not upon his trial, cannot be a witness for the others who may be upon their trial; but where they are separately indicted, one of the persons indicted, who has not been tried, is competent on the trial of any of the others who are indicted, See 1 Phil. Ev. 40.

See this case reported on another point, dlc. & Nap. 441. n.

As to the law of evidence in criminal cases generally, see Arch. Pl. & Ev.95; Rosc, Ev. Cr. Ca. passim; and Stark, Law of Ev. under the proper heads.

CHAPTER XII.

OF THE TRIAL.

20 Hen. 6, c. 9, Eng. [Sec. 1 recites Magna Charta, c. 29.] (2) In which statute is no mention made how women, ladies of great estate, in respect of their husbands, peers of the land, married or sole, that is to say, duchesses, countesses, or baronesses, shall be put to answer, or before what judges that they shall be judged upon indictments of treasons or felonies by them committed or done; in regard whereof it is a doubt in the law of England, before whom, and by whom such ladies so indicted shall be put to answer, and be judged; (3) our said lord the king, willing to put out such ambiguities and Ladies of peers shall be doubts, hath declared by authority aforesaid, that such ladies tried by the so indicted, or hereafter to be indicted, of any treason or felony same tribuby them done, or hereafter to be done, whether they be mar- husbands. ried or sole, that they thereof shall be brought to answer, and put to answer, and judged before such judges and peers of the realm, as peers of the realm should be, if they were indicted or impeached of such treasons or felonies done, or hereafter to be done, and in like manner and form, and in none otherwise.

nals as their

to be calen.

3 Hen. 7, c. 3, Eng. (5) And moreover it is enacted by Sheriff's &c. the same authority, that every sheriff, bailiff of franchise, and shall cause every other person having authority or power of keeping of the names of gaol or of prisoners for felony, in like manner and form do all prisoners certify the names of every such prisoner in their keeping, and dered, for the of every prisoner to them committed for any such cause, at justices of gaol delivery. the next general gaol delivery in every county or franchise where any such gaol or gaols have been or hereafter shall be, there to be kalendred before the justices of the deliverance of the same gaol; whereby they may, as well for the king as for the party, proceed to make deliverance of such prisoners, according to the law; (6) upon pain to forfeit unto the king, for every default thereof recorded, C. s.

3 Hen. 7, c 1, Eng. (14) That if any man be slain or Persons murdered, and thereof the slayers, murderers, abettors, main- indicted of murd r may tainers, and comforters of the same be indicted, that the same be tried imslayers and murderers, and all other accessories of the same be mediately. arraigned and determined of the same felony and murder at any time at the king's suit, within the year after the same

3 H.7,c.1. felony and murder done, and not tarry the year and day for any appeal to be taken for the same felony or murder.

Jury shall not inquire of prisoner's lands or goods.

Proceedings upon the estreat of re.

4 Anne, c. 11(a), s. 1. [To prevent horse-stealing, the proprietor of every fair and market overt, shall yearly fix an open place where horses are to be sold, and appoint a toll-keeper there to enter the sales in a book, which, within one day, shall be delivered to the proprietor.]

2. [That the sale, exchange &c., of any stolen horse in fair or market overt, shall not alter the property therein, unless it be ridden or kept openly in such fair, not in a house or yard, for one hour between 10 A.M. and sunset; and unless all parties to the contract shall go with the horse to the book-keeper, who shall enter their names and places of residence, together with the colour, marks, and price of the horse. That no horse shall be sold, unless the bookkeeper know the seller, or that some person will vouch for him: and the name of the person who vouches shall also be entered, and a ticket of all, given to the buyer, he paying three pence. On non-compliance herewith by any party, he shall forfeit twenty shillings, and the sale shall be void.]

9 Geo. 4, c. 54. s. 11.-That where any person shall be indicted for treason or felony, the jury impannelled to try such person shall not be charged to inquire concerning his lands, tenements, or goods, nor whether he fled for such treason or felony.

34. And whereas the practice of indiscriminately estreating recognizances for the appearance of persons to prosecute or cognizances. give evidence, or to answer for a common assault, or in the other cases hereinafter specified, has been found in many instances productive of hardship to persons who have entered into such recognizances; be it therefore enacted, that in every case where any person bound by recognizance for his or her appearance, (or for whose appearance any other person shall be so bound) to prosecute or give evidence in any case of felony or misdemeanor, or to answer for any common assault, or to articles of the peace, shall therein make default, the officer of the court by whom the estreats are made out, shall, and such officer is hereby required to prepare a list in writing, specifying the name of every person so making default, and the nature of the offence in respect of which every such person, or his or her surety, was so bound, together with the residence, trade, profession, or calling of every such person and surety, and shall, in such list, distinguish the principals from the sureties, and shall state the cause, if known, why each such person has not appeared, and whether by reason of the nonappearance of such person, the ends of justice have been defeated or delayed; and every such officer shall, and such officer

(a) Entitled," An act against horse-stealing, and to prevent the buying and selling of stolen horses: and for punishing all accessories to felons.”