fering the punishment restores competency) he may be called as a witness against the other prisoners. (1) tract. If an accomplice, after having confessed the crime, and after Breach of conhaving been received as a witness against his associates, breaks the condition on which he has been admitted, by refusing to give full and fair information, the court may direct a bill to be presented forthwith to the grand jury against him; or, if they are discharged, may commit him to prison, and he may be tried and convicted on his own confession. (2) On the trial of a person for a misdemeanor in receiving Principal and stolen goods, under the repealed statute, (22 Geo. 3, c. 58,) accessary. which authorized proceedings against the accessary, notwithstanding the principal felon might not have been convicted, or might not be amenable to justice, the party who had committed the theft, but had not been convicted, was held to be a competent witness for the prosecution, (3) and the same doctrine would be applicable to the case of a receiver, prosecuted for a substantive felony under the provisions of the statute now in force on this subject.(4) admissible for As the infamy of an accomplice's character does not render Accomplice him an incompetent witness for the prosecution, it follows, upon prisoner. the same principle, that he will be also a competent witness on behalf of the prisoner, notwithstanding he may be himself charged on a separate indictment, unless he has been actually convicted and sentenced. (5) And upon a joint indictment against several prisoners, when there is either no evidence whatever, or very slight evidence against one of them, the (1) A witness so circumstanced is competent for the other defendants, see R. v. Fletcher, 1 Stra. 633, (post, competency of parties to suit,) and the principle is the same in regard to his competency for the prosecution. (2) R. v. Burley, 2 Stark. Evid. (2 edit.) 12 n. (r). (3) Haslam's case, 1 Leach, Cr. Ca. 467. Price's case, ibid. 468, n. (1). Patram's case, 2 East, P. C. 782. So also it was decided (4) 7 & 8 Geo. 4, c. 29, s. 54. court, in the exercise of its discretion, sometimes will direct a Accomplice not corroborated. Practice requiring corroboration. SECTION II. Of the Confirmation of Accomplices. Since accomplices are competent witnesses, it appears to follow as a necessary consequence, that if their testimony is believed by the jury, a prisoner may be legally convicted upon it, though it be unconfirmed by any other evidence. It is the peculiar province of the jury to determine upon the degree of credit to be attached to any competent evidence submitted to their consideration; and it has accordingly been laid down in many cases as a settled rule, that a conviction obtained upon the unsupported testimony of an accomplice is strictly legal. (2) But great injustice would result, if it were the practice of juries to convict upon the unsupported evidence of accomplices, whose testimony, though admitted from necessity, ought always to be received with great jealousy and caution. For upon their own confession they stand contaminated with guilt; they admit a participation in the very crime, which they endeavour by their evidence to fix upon the prisoner; they are sometimes entitled to reward upon obtaining a conviction, and always expect to earn a pardon. Accomplices are therefore of tainted character, giving their testimony under the strongest motives to deceive; and a jury would not in general be justified, in giving to such witnesses credit for a conscientious regard to the obligation of an oath. Sometimes they may be tempted to accuse a party who is wholly innocent, in order to screen themselves or a guilty associate; and if the (1) 2 Hawk. P. C. c. 46, s. 98. R. v. Bidder, 1 Sid. 237. See post, competency of parties to the suit. (2) R. v. Atwood, Leach, Cr. Ca. 521. 7 T. R. 609. R. v. Durham, Leach, Cr. Ca. 538. 1 Hale, P. C. 303. See per Lord Ellenborough, R. v. Jones, 2 Campb. 132. 31 Howell's St. Tr. 325. 7 T. R. 609, S. P. Per Lord Denman, 7 C. & P. 152, and per Alderson, 7 C. & P 273. prisoner has been their participator in crime, they may be disposed to colour and exaggerate their statement against him, with a view to hide their own infamy, or, by obtaining his conviction, to protect themselves from his vengeance, and secure the expected benefit (1). The doctrine, therefore, of a legal conviction upon the unsupported evidence of an accomplice, has been greatly modified in substance and effect; and it has long been considered, as a general rule of practice, that the testimony of an accomplice ought to receive confirmation, and that, unless it be corroborated in some material part by unimpeachable evidence, the presiding judge ought to advise the jury to acquit the prisoner. (2) It has been laid down, that the practice, of requiring Nature and some confirmation of an accomplice's evidence, must be foundation of the practice. considered in strictness as resting only upon the discre (1) See Lord Hale's remarks on Tongues' case, 1 Hale, P. C. 304. In the earlier state trials the protection and countenance afforded by the courts to accomplices, spies, and informers was often carried to great lengths; and prisoners were sometimes tauntingly asked, whether they thought the king would bribe his witnesses; see Langhorne's case, 7 St. Tr. 446. The language of Lord Holt, in the trials for the Assassination Plot, may probably be thought, at the present day, too favourable towards accomplices; see particularly Charnock's case, 12 How. St. Tr. 1454. The exordium of Lord Howard to his evidence in Algernon Sidney's case, is a curious specimen of the hypocrisy of an accomplice. (2) See the cases collected and stated in the text, infra, et seq. On the subject of the Evidence of Accomplices, see a tract by the present Lord Chief Baron of Ireland, pubished in 1836, which contains an elaborate examination into the origin and history of this practice. According to the view of this learned writer, the practice of requiring confirmation cannot be traced back more than half a century. And he observes, that in the earlier cases Depends on discretion of judge, not a strict rule of law. Extent of tion of the presiding judge. (1) And this, indeed, appears to be the only mode, in which it can be made reconcileable with the doctrine already stated, that a legal conviction may take place upon the unsupported evidence of an accomplice. But it may be observed, that the practice in question has obtained so much sanction from legal authority, that a deviation from it on the part of a judge, in any particular case, would, at the present day appear singular and of questionable propriety. Although the judge does not in express language, declare, that a case depending on the unconfirmed evidence of an accomplice, is insufficient in law to warrant a conviction, but merely advises the jury not to place credit on the evidence; yet, as it is not likely an instance should arise, in which the jury would disregard the advice so given, and convict the prisoner, the substantial result appears to be nearly the same, as if the practice had depended upon a rule of law, instead of being the exercise of the discretion of the presiding judge. The only distinction appears to be, that if the judge were to submit a case of this nature to the jury without any such recommendation, and a conviction ensued,—or if a jury were to convict in opposition to the recommendation of the judge, it could not properly be said in either case, consistently with the authorities on the subject, that the conviction would be illegal. From the anomalous nature of the rule of practice requiring corroboration. confirmation, more especially from the circumstance that it is considered in law to rest merely upon the discretion of the presiding judge, and that it appears in fact to have originated in the exercise of such discretion, it might be expected, that some difference of opinion would arise as to the nature and extent of the necessary confirmation. It is clearly unnecessary Confirmation of that the accomplice should be confirmed in every circumstance which he details in evidence; for there would be no occasion to use him at all as a witness, if his narrative could be completely proved by other evidence free from all suspicion. (2) some material part sufficient. The rule York, on Special Commission, 1813, pp. 16, 17, 50, 150, 165, 201. rule upon the subject which has generally been laid down is, that if the jury are satisfied, that he speaks truth in some material part of his testimony, in which they see him confirmed by unimpeachable evidence, this may be a ground for their believing, that he also speaks truth in other parts, as to which there may be no confirmation. (1) So far all the authorities. agree; but the point, upon which a difference of opinion and of practice appears to have prevailed, is as to the particular part or parts of the accomplice's testimony, which ought to be confirmed. prisoner. In some cases it has been considered, that the confirmation Confirmation ought to be such as affects the person of the prisoner, and as to identity of connects him directly with the crime; but in other cases this description of confirmation has been considered unnecessary, and it has been held, that confirmation of the accomplice in other parts of his testimony, which do not affect the identity of the prisoner, may be sufficient to entitle the accomplice to credit, and to warrant the judge in leaving the case to the jury without a recommendation to acquit. In the first case, in which this question appears to have been Authorities. expressly raised, two prisoners had been convicted on the evidence of an accomplice, who was confirmed as to the circumstances attending the offence, but not as to the identity of the prisoners, and the judges were unanimously of opinion, that the conviction was good, upon the general ground already mentioned; namely, that a prisoner may legally be convicted upon the unconfirmed evidence of an accomplice. (2) In a case occurring shortly afterwards, a similar decision took place, and, as it appears, on the same ground. At the trial the court observed, that the practice of rejecting an unsupported accomplice was rather a matter of discretion with the judge, than a rule of law; and the case having been left to the jury, and the prisoner convicted, particularly the charges of Thompson, C. B., in R. v. Swallow, and of Le Blanc, J., in R. v. Mellor. (1) See authorities cited in the preceding note, and Despard's case, 28 How. St. Tr. 488, and VOL. I. D per Lord Ellenborough, 31 How. (2) R. v. Atwood, Leach, C. C. |