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long disused, and fully provided for by

complices 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 justitie. 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. which has been 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 (9): 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, [*331] 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,

(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, lye 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 & this encouragement has been given by 8 Geo. IV. c. 27.

the justice of the peace.

This admis(12) In the case of Mrs. Rudd, in sion to be a witness amounts to a which this subject is clearly and ably promise of a recommendation to mercy, explained by Lord Mansfield, and again upon condition that the accomplice by Mr. J. Aston, in delivering the makes a full and fair disclosure of all opinion of all the judges, (Cowp. 331,) the circumstances of the crime for it is laid down that no authority is given which the other prisoners are tried, to a justice of peace to pardon an of- and in which he has been concerned in fender, and to tell him he shall be a

concert with them. Upon failure on his witness at all events against others. part with this condition, he forfeits all But where the evidence appears insuf- claim to protection. And upon a trial ficient to convict two or more without some years ago at York, before Mr. J. the testimony of one of them, the ma- Buller, the accomplice, who was adgistrate may encourage a hope that he mitted a witness, denied in his evidence who will behave fairly and disclose the all that he had before confessed, upon whole truth, and bring the others to which the prisoner was acquitted ; but justice, shall himself escape punish the judge ordered an indictment to be ment. But this discretionary power preferred against this accomplice for exercised by the justices of peace is the same crime ; and upon his previous founded in practice only, and cannot confession, and other circumstances, he control the authority of the court of was convicted and executed. And, if gaol delivery, and exempt at all events the jury were satisfied with his guilt, the accomplice from being prosecuted. there can be no question with regard A motion is always made to the judge both to the law and justice of the case. for leave to admit an accomplice to be The learned commentator says, that a witness, and unless he should see the accomplice thus admitted a witness, some particular reason for a contrary shall not afterwards be prosecuted for conduct, he will prefer the one to whom that or any other previous offence of the VOL. IV.

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same degree. Mrs. Rudd's case does N.P.C. 34 ; Car. Cr. L. 67, 2d ed. not warrant the extent of that position, And see Rer v. Dawber, 3 Stark. 34-5, for the decision of that case, and what is n., where it is said, that if the testimony advanced by Mr. J. Aston, (Cowp. 341,) of an accomplice be confirmed so far and as the editor conceives the reason as it relates to one prisoner, but not as and principles of this doctrine, will not to another, the one may be convicted extend the claim of the witness to on the testimony of the accomplice, if mercy beyond those offences in which the jury deem him worthy of credit. he has been connected with the pri- An accomplice does not require consoners, and concerning which he has firmation as to the person charged, previously undergone an examination provided he is confirmed in the particuAnd with regard to these crimes he may lars of his story ; Rer v. Birkett and be cross-examined by the counsel for Brady, R. & R. C. C. 251. And the the prisoner, but of course he may corroboration of his evidence need not refuse to criminate himself of other be on every material point, but he must charges, against which that prosecution be so confirmed as to convince the jury affords him no protection. -CH. that his statement is correct and true;

(13) It has now been solemnly de- Rer v. Barnard, I C. & P. 88. If an cided that an accomplice admitted as accomplice is confirmed only as to col. king's evidence, and performing the lateral facts, which do not connect condition on which he is admitted as a either the accused with the offence, or witness, is not entitled, as matter of the accused and the accomplice toright, to be exempt from prosecution gether, it is not sufficient; Rer v. Addis, for other offences with which he is 6 C. & P. 383. Proving by other charged, but that it will be matter in witnesses that a robbery was in fact the discretion of the judge whether he committed, in the mode in which an will recommend him for a pardon or not; accomplice states it to have been comRer v. Lee, R. & R. C. C. 361; Rer mitted, is not such a confirmation of v. Brunton, id. 454. Even the equi- the accomplice as is required to war. table claim of an accomplice to a par- rant a conviction on his evidence; Rer don, on condition of his making a full v. Webb, 6 C. & P. 595. A person and fair confession, does not extend to indicted for a misdemeanor may be leprosecutions for other offences in which gally convicted upon the uncorroborated he was not concerned with the prisoner: evidence of an accomplice ; Rer v. with respect to such offences, therefore, Jones, 2 Camp. 132. So may a person he is not bound to answer on cross-ex- indicted for a capital offence; Jordaine amination ; Lee's, Duce's, & West's v. Lashbrook, 7 T. R. 609. But the cases, 1 Phil. Ev. 37.

But the judges testimony of accomplices alone is selwill not, in general, admit an accom- dom of sufficient weight with a jury to plice as king's evidence, although ap- convict the offenders ; the temptation plied to for that purpose by the counsel to commit perjury being so great, where for the prosecution, if it appear that he the witness by accusing another may is charged with any other felony than

escape himself. The practice, therethat on the trial of which he is to be a fore, is to advise the jury to regard the witness ; 2 C. & P. 41l; Car. Cr. evidence of an accomplice, only in cases L. 62. Where an accomplice is con- where he is confirmed, in some part of firmed in his evidence against one pri- his testimony, by unimpeachable testisoner, but not with respect to another, mony; Phil. Ev. 34, 3d ed. And see both may be convicted, if the jury think id. c. 4, § 2, and the several authorities the accomplice deserving of credit ; there cited and considered. See also Rei v. Dawber and others, 2 Stark, 2 Stark. Ev. 11, et seq.

332

CHAPTER XXVI.

OF PLEA AND ISSUE.

a

We are now to consider the plea of the prisoner, or defensive The prisoner's

pleas are, 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 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 conve- [*333] nient 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 (6). 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,

(u) Mirr. c. 1, § 13; 2 Hawk. P. C. 335. (6) 2 Hawk. P. C. 52.

1. A plea to the Jurisdiction of

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).

II. A demurrer to the indictment (3). This is incident to

criminal cases, as well as civil, when the fact as alleged is to, because the allowed to be true, but the prisoner joins issue upon some same advantages may be had on a point of law in the indictment, by which he insists that the guilty, or in ar- fact, as stated, is no felony, treason, or whatever the crime is rest of judg.

alleged to be. Thus, for instance, if a man be indicted for [*334) 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

makes all answer to the charge unnecessary.

1. A demurrer to the indict. ment which is seldom resorted

plea of not

ment.

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

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

(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; Rerv. Fearnley, 1 Leach, C. C. 425.

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