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which has been long disused,

and fully provided for by

permitting accomplices to give evidence.

answer it; and if he hath no reasonable and legal exceptions to make to the person of the approver, which indeed are very numerous, he must put himself upon his trial, either by battle, or by the country; and, if vanquished or found guilty, must suffer the judgment of the law, and the approver shall have his pardon ex debito justitiæ. On the other hand, if the appellee be conqueror, or acquitted by the jury, the approver shall receive judgment to be hanged, upon his own confession of the indictment; for the condition of his pardon has failed, viz. the convicting of some other person, and therefore his conviction remains absolute.

But it is purely in the discretion of the court to permit the approver thus to appeal, or not; and, in fact, this course of modern statutes admitting approvements hath been long disused: for the truth was, as Sir Matthew Hale observes, that more mischief hath arisen to good men by these kind of approvements, upon false and malicious accusations of desperate villains, than benefit to the public by the discovery and conviction of real offenders. And, therefore, in the times when such appeals were more frequently admitted, great strictness and nicety were held therein (g): though, since their discontinuance, the doctrine of approvements is become a matter of more curiosity than use. I shall only observe, that all the good, whatever it be, that can be expected from this method of approvement, is fully provided for in the case of coining, robbery, burglary, housebreaking, horsestealing, and larceny, to the value of five shillings, from shops, warehouses, stables, and coach-houses, by statutes 4 and 5 W. and M. c. 8, *6 and 7 W. III. c. 17, 10 and 11 W. III. c. 23, and 5 Ann. c. 31, which enact, that, if any such offender, being out of prison, shall discover two or more persons, who have committed the like offences, so as they may be convicted thereof; he shall in case of burglary or housebreaking receive a reward of 401., and, in general, be entitled to a pardon of all capital offences, excepting only murder and treason; and of them also in the case of coining (h) (10). And if any such person, having feloniously stolen any lead, iron, or other metals,

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(g) 2 Hal. P. C. ch. 29. 2 Hawk. P. C. ch. 24.

(h) The pardon, for discovering of

fences against the Coinage Act of 15 Geo. II. c. 28, extends only to all such offences.

(10) These statutes are all repealed; vide, ante, 294-5, in notis.

shall discover and convict two offenders of having illegally bought or received the same, he shall, by virtue of statute 29 Geo. II. c. 30, be pardoned for all such felonies committed before such discovery (11). It hath also been usual for the justices of the peace, by whom any persons charged with felony are committed to gaol, to admit some one of their accomplices to become a witness (or, as it is generally termed, king's evidence) against his fellows; upon an implied confidence, which the judges of gaol delivery have usually countenanced and adopted, that if such accomplice makes a full and complete discovery of that and of all other felonies to which he is examined by the magistrate, and afterwards gives his evidence without prevarication or fraud, he shall not himself be prosecuted for that or any other previous offence of the same degree (i) (12) (13).

(i) The King v. Rudd; Mich. 16 Geo. III. on a case reserved from the Old Bailey, Oct. 1775.

(11) This statute is repealed by 7 & 8 Geo. IV. c. 27.

(12) In the case of Mrs. Rudd, in which this subject is clearly and ably explained by Lord Mansfield, and again by Mr. J. Aston, in delivering the opinion of all the judges, (Cowp. 331,) it is laid down that no authority is given to a justice of peace to pardon an offender, and to tell him he shall be a witness at all events against others. But where the evidence appears insufficient to convict two or more without the testimony of one of them, the magistrate may encourage a hope that he who will behave fairly and disclose the whole truth, and bring the others to justice, shall himself escape punishment. But this discretionary power exercised by the justices of peace is founded in practice only, and cannot control the authority of the court of gaol delivery, and exempt at all events the accomplice from being prosecuted. A motion is always made to the judge for leave to admit an accomplice to be a witness, and unless he should see some particular reason for a contrary conduct, he will prefer the one to whom VOL. IV.

this encouragement has been given by the justice of the peace. This admis

sion to be a witness amounts to a promise of a recommendation to mercy, upon condition that the accomplice makes a full and fair disclosure of all the circumstances of the crime for which the other prisoners are tried, and in which he has been concerned in concert with them. Upon failure on his part with this condition, he forfeits all claim to protection. And upon a trial some years ago at York, before Mr. J. Buller, the accomplice, who was admitted a witness, denied in his evidence all that he had before confessed, upon which the prisoner was acquitted; but the judge ordered an indictment to be preferred against this accomplice for the same crime; and upon his previous confession, and other circumstances, he was convicted and executed. And, if the jury were satisfied with his guilt, there can be no question with regard both to the law and justice of the case.

K K

The learned commentator says, that the accomplice thus admitted a witness, shall not afterwards be prosecuted for that or any other previous offence of the

same degree. Mrs. Rudd's case does not warrant the extent of that position, for the decision of that case, and what is advanced by Mr. J. Aston, (Cowp. 341,) and as the editor conceives the reason and principles of this doctrine, will not extend the claim of the witness to mercy beyond those offences in which he has been connected with the prisoners, and concerning which he has previously undergone an examination. And with regard to these crimes he may be cross-examined by the counsel for the prisoner, but of course he may refuse to criminate himself of other charges, against which that prosecution affords him no protection.-CH.

(13) It has now been solemnly decided that an accomplice admitted as king's evidence, and performing the condition on which he is admitted as a witness, is not entitled, as matter of right, to be exempt from prosecution for other offences with which he is charged, but that it will be matter in the discretion of the judge whether he will recommend him for a pardon or not; Rex v. Lee, R. & R. C. C. 361; Rex v. Brunton, id. 454. Even the equitable claim of an accomplice to a pardon, on condition of his making a full and fair confession, does not extend to prosecutions for other offences in which he was not concerned with the prisoner: with respect to such offences, therefore, he is not bound to answer on cross-examination ; Lee's, Duce's, & West's cases, 1 Phil. Ev. 37. But the judges will not, in general, admit an accomplice as king's evidence, although applied to for that purpose by the counsel for the prosecution, if it appear that he is charged with any other felony than that on the trial of which he is to be a witness; 2 C. & P. 411; Car. Cr. L. 62. Where an accomplice is confirmed in his evidence against one prisoner, but not with respect to another, both may be convicted, if the jury think the accomplice deserving of credit; Rex v. Dawber and others, 2 Stark,

N. P. C. 34; Car. Cr. L. 67, 2d ed. And see Rex v. Dawber, 3 Stark. 34-5, n., where it is said, that if the testimony of an accomplice be confirmed so far as it relates to one prisoner, but not as to another, the one may be convicted on the testimony of the accomplice, if the jury deem him worthy of credit. An accomplice does not require confirmation as to the person charged, provided he is confirmed in the particulars of his story; Rer v. Birkett and Brady, R. & R. C. C. 251. And the corroboration of his evidence need not be on every material point, but he must be so confirmed as to convince the jury that his statement is correct and true; Rex v. Barnard, 1 C. & P. 88. If an accomplice is confirmed only as to collateral facts, which do not connect either the accused with the offence, or the accused and the accomplice together, it is not sufficient; Rex v. Addis, 6 C. & P. 383. Proving by other witnesses that a robbery was in fact committed, in the mode in which an accomplice states it to have been committed, is not such a confirmation of the accomplice as is required to warrant a conviction on his evidence; Rer v. Webb, 6 C. & P. 595. A person indicted for a misdemeanor may be legally convicted upon the uncorroborated evidence of an accomplice; Rex v. Jones, 2 Camp. 132. So may a person indicted for a capital offence; Jordaine v. Lashbrook, 7 T. R. 609. But the testimony of accomplices alone is seldom of sufficient weight with a jury to convict the offenders; the temptation to commit perjury being so great, where the witness by accusing another may escape himself. The practice, therefore, is to advise the jury to regard the evidence of an accomplice, only in cases where he is confirmed, in some part of his testimony, by unimpeachable testimony; Phil. Ev. 34, 3d ed. And see id. c. 4, § 2, and the several authorities there cited and considered. See also 2 Stark. Ev. 11, et seq.

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CHAPTER XXVI.

OF PLEA AND ISSUE.

pleas are,

We are now to consider the plea of the prisoner, or defensive The, prisoner's matter alleged by him on his arraignment, if he does not confess, or stand mute. This is either, 1. A plea to the jurisdiction; 2. A demurrer; 3. A plea in abatement; 4. A special plea in bar; or, 5. The general issue.

Formerly, there was another plea, now abrogated, that of sanctuary; which is, however, necessary to be lightly touched upon, as it may give some light to many parts of our ancient law it being introduced and continued during the superstitious veneration that was paid to consecrated ground in the times of popery. First, then, it is to be observed, that if a person accused of any crime (except treason, wherein the crown, and sacrilege, wherein the church, was too nearly concerned) had fled to any church or churchyard, and within forty days after went in sackcloth and confessed himself guilty before the coroner, and declared all the particular circumstances of the offence; and took the oath in that case provided, viz. that he abjured the realm, and would depart from thence forthwith at the port that should be assigned him, and would never return without leave from the king; he by this means saved his life, if he observed the conditions of the oath, by going with a cross in his hand, and with all convenient speed, to the port assigned, and embarking. For if, during this forty days' privilege of sanctuary, or in his road to the sea-side, he was apprehended and arraigned in any court, for this felony, he might plead the privilege of sanctuary, and had a right to be remanded, if taken out against his will (a). But by this abjuration his blood was attainted, and he forfeited all his goods and chattels (b). The immunity of these privileged places was very much abridged by the statutes 27 Hen. VIII. c. 19, and 32 Hen. VIII. c. 12. And now, by the statute 21 Jac. I. c. 28, all privilege of sanctuary,

(a) Mirr. c. 1, § 13; 2 Hawk. P. C. 335. (b) 2 Hawk. P. C. 52.

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I. A plea to the Jurisdiction of

makes all an

swer to the

and abjuration consequent thereupon, is utterly taken away and abolished.

Formerly also the benefit of clergy used to be pleaded before trial or conviction, and was called a declinatory plea; which was the name also given to that of sanctuary (c). But, as the prisoner upon a trial has a chance to be acquitted, and totally discharged; and, if convicted of a clergyable felony, is entitled equally to his clergy after as before conviction; this course is extremely disadvantageous; and therefore the benefit of clergy is now very rarely pleaded; but, if found requisite, is prayed by the convict before judgment is passed upon him (1).

I proceed, therefore, to the five species of pleas before mentioned.

I. A plea to the jurisdiction, is where an indictment is the court, which taken before a court, that hath no cognizance of the offence; as if a man be indicted for a rape at the sheriff's tourn, or for treason at the quarter sessions: in these, or similar cases, he may except to the jurisdiction of the court, without answering at all to the crime alleged (d) (2).

charge unnecessary.

I. A demurrer to the indictment which is seldom resorted

to, because the

same advantages

may be had on a

plea of not

guilty, or in arrest of judg ment.

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II. A demurrer to the indictment (3). This is incident to criminal cases, as well as civil, when the fact as alleged is allowed to be true, but the prisoner joins issue upon some point of law in the indictment, by which he insists that the fact, as stated, is no felony, treason, or whatever the crime is alleged to be. Thus, for instance, if a man be indicted for feloniously stealing a greyhound; which is an animal in which no valuable property can be had, and therefore it is not felony, but only a civil trespass, to steal it: in this case the party indicted may demur to the indictment; denying it to be felony, though he confesses the act of taking it. Some have held (e), that if, on demurrer, the point of law be adjudged against the prisoner, he shall have judgment and ex

(c) 2 Hal. P. C. 236.
(d) Ibid. 256.

(e) 2 Hal. P. C. 257.

(1) Benefit of clergy is abolished in all cases of felony by 7 & 8 Geo. IV. c. 28, § 6.

(2) Pleas to the jurisdiction must be pleaded before the general issue, and must, it seems, in general, be supported

by affidavit; 1 Chit. Cr. L. 438-9.

(3) On a demurrer to an indictment, the superior court will look into the whole record; Rex v. Fearnley, 1 Leach, C. C. 425.

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