plice. It appears to have been held, in a late case, that a confirma- Wife of accomtion by the wife of an accomplice would be insufficient: it was said, that the wife and the accomplice must be considered as one for this purpose. (1) who are. In another recent case, in which the prisoner was indicted for Accomplices, manslaughter at a fight, it was objected, that all persons, who had been present, were principals in the second degree, and that their evidence ought to receive confirmation as in the case of accomplices, but Mr. Justice Patteson was of opinion, that they were not such accomplices as would require any further evidence to confirm them. (2) SECTION III. Evidence of Informers, and Self-discrediting Witnesses. There is another class of witnesses, who cannot properly be 1. Informers. considered as coming within the description of accomplices, or as partaking of their criminal contamination; namely, persons, who have entered into communication with conspirators, with an original purpose of discovering their secret designs, and of disclosing them for the benefit of the public. (3) The existence of such original purpose on their part is best evinced by a conduct, which precludes them from wavering or swerving from the the speeches of the Solicitor General and Mr. Serjeant Best, in R. v. Despard, 28 How. St. Tr. 428. See on this subject the observations of the writer of the anonymous pamphlet upon accomplices before referred to, as to the trial of the incendaries of Wildgoose Lodge, Dundalk. Spring Ass. 1818, where a house with its inmates was destroyed by fire by upwards of a hundred persons, marching in three parties from distant points not connected with each other, and the accomplices were selected from the different parties. And, further, on the general subject, see Sir T. Witherington's argument, 5 How. 176. Discussion in Sayer's case, 16 How. 158. Sir R. Atkyn's re- (1) R. v. Neale, 7 Car. & P. 168, (2) R. v. Hargraves, 5 Car. & P. p. 170; and see the cases referred to in sect. 3, supra. (3) Part of Lord Ellenborough's address to the jury in Despard's case, 28 Howell's St. Tr. 489. 2. Witness alleging his own dis honesty. discharge of their duty, if they might otherwise be disposed so to do; as, when the witness voluntarily makes an early disclosure, and thenceforth acts in pursuance of directions given to him, as to the part which he is to bear in the general confederacy. Such a witness is not to be considered in the light of an accomplice, although perhaps, on other grounds, no small degree of prejudice or disfavour may attach to him; for certainly, no man of honour or right feeling would continue to associate with his companions, apparently forwarding the purposes of a conspiracy, with the intention afterwards of betraying, and giving them up to justice. Whatever may be the merit or demerit of this species of conduct on other grounds, such a witness is not, strictly speaking, an accomplice. (1) In prosecutions under the laws against coining and uttering counterfeit money, the proof of the offence often rests in a great measure on the testimony of some person, employed by the agents of the mint for the purpose of obtaining the counterfeit coin under feigned pretences. This testimony is usually supported, and very properly, in some material facts, by other unimpeachable evidence. The objection to the competency of informers, on the ground of being entitled to a penalty on the conviction of the offender, against whom they give information, will be considered in another part of this work. Mr. Justice Lawrence observes, (2) that the constant practice of examining accomplices shews, that the mere circumstance of a man's having represented himself as having done things inconsistent with common honesty, is not sufficient to reject his testimony, however it may weaken and impeach it. The maxim of the civil law, nemo allegans suam turpitudinem est audiendus, would not admit of such a practice. But this maxim is of a nature so exclusive in it's operation, and at the same time so vague and undefined, that our Courts of law have properly rejected it as a rule of evidence. strument. In the case of Walton v. Shelley (1), indeed, which was an Witness invaaction upon a bond, given by the defendant in consideration lidating an inof the plaintiff's delivering up certain promissory notes, the Court of King's Bench held, that the indorser of one of the Indorser. notes ought not to be allowed to prove the consideration of the note usurious, on a supposed principle of public policy, that no party who has signed a paper or deed, and has, by his signature, given it credit, shall ever be permitted to give testimony to invalidate that instrument. This appears to have been the first case in support of such a rule: but the contrary principle seems now to be fully established. In the later case of Jordaine v. Lashbrooke, (2) this subject was very fully discussed; and the court there determined, that in an action on a bill of exchange against the acceptor, the payee, who was also indorser, was a competent Payee, witness for the defendant, to prove that the bill, which was unstamped, and purported to be drawn at Hamburgh, was, in fact, drawn in London, and therefore void for the want of a stamp. Nor is there any distinction with respect to negotiable securities, when the point to be considered is the competency of the witness for supposing what he has done, in putting such instruments into circulation, to be ever so great a fraud and ever so mischievous, he still is a witness unconvicted of any crime, and without interest, and not more devoid of principle than many who have been mentioned as constantly admitted. (3) And this rule applies to all cases, civil as well as criminal, in which a witness's character is open to objection from the tur pitude or impropriety of his conduct. Thus in an action under Person bribed, the statute 2 Geo. 2, c. 24, for bribery at an election, a person who has received a bribe may be a competent witness against the defendant. (4) And one who has set his name as sub (1) 1 T. R. 296. "Testes qui adversus fidem suam testationis vacillant, audiendi non sunt," was the maxim of the civil law. Domat. book 3, tit. 3, sect. 6, art. 12. (2) 7 T. R. 601. Ashurst, J. contra. See Jones v. Brooke, 4 Taunt. 464. 1 Ves. & Beam. 208. (3) 7 T. R. 611. By this case of Jordaine v. Lashbrooke, the case of Adams v. Lingard, 1 Peake, N.P.C. 117, and some other cases of the same kind are overruled. (4) Bush v. Ralling, Say. 289, Subscribing witness. Other in stances. scribing witness to a deed or will, is admissible to impeach the execution of the instrument; (1) although his evidence is to be received with all the jealousy necessarily attaching to a witness, who, upon his oath, asserts that to be false, which he has by his solemn act attested as true. (2) In an action to recover the price of goods supplied to a ship, against a party whose name appeared on the register as part owner, it was decided, that a witness, upon whose oath the register had been obtained, was competent to prove, that he had inserted the defendant's name therein without his privity or consent; and the objection, that the witness's evidence was at variance with his oath, only would affect his credit. (3) A person, who has joined in an assignment of a ship, is a competent witness to prove that, in point of fact, he had no property in the vessel at the time of the assignment. (4) A vendor of property is competent to prove, that he had no title in the lands pretended to be sold and conveyed. (5) already seen, a witness who admits, that upon a former proceeding he swore falsely with regard to the matters upon which he is examined, is not incompetent, however the objection may affect his credit. (6) And, as we have (1) Lowe v. Joliffe, 1 Black. Rep. 365. 7 T. R. 604, 611. 6 East, 195. (2) 1 Ves. & Beam. 208. (3) Rands v. Thomas, 5 M. & S. 244. (4) By Willes, J., 1 T. R. 301. (5) Tillo v. Grevet, 2 Lord Raym. 1008. 7 T. R. 609. (6) R. v. Teal, 11 East, 309, supra, p. 43 CHAPTER V. OF THE INCOMPETENCY OF WITNESSES FROM INterest. THE fourth ground of incompetency is interest. It is a general rule, that all persons interested in the event of General rule. a cause, are to be excluded from giving evidence in favour of that party, to which their interest inclines them. This rule is founded upon a presumed want of impartiality in an interested witness. "When a man," says C. B. Gilbert, (1) "who is interested in the matter in question, comes to prove it, it is rather a ground for distrust, than any just cause of belief; for men are generally so short-sighted as to look at their own private benefit which is near to them, rather than to the good of the world, which is more remote; therefore, from the nature of human passions and actions, there is more reason to distrust such biassed testimony, than to believe it." Policy of the The exclusion of witnesses from interest is much more frequent than from any of the grounds of incompetency, which rule. have been already considered, and the policy of the law on this subject is by no means free from doubt. Against the rule it Objections may be objected, that there is no just ground for inferring, that, against. in the generality of instances, persons interested in the subject in controversy will be induced, from a regard to their interest, to violate the duties of morality and religion, or to incur the penalties of the law by committing perjury; nor, if they should yield to such an inducement, is it to be inferred, that they would be successful in imposing upon the judge and jury, after being subjected to the test of cross-examination, before the public, in open Court. It may be observed also, that it is not reasonable, and scarcely consistent, to exclude witnesses on account of some trifling pecuniary interest, so small perhaps as not to be supposed capable of producing a bias on their (1) Evid, (3 edit.) 122. |