s. 1. parliament to be part of the punishment, as in the case of perjury or subornation of perjury on the stat. 5 Eliz. c. 9. (m) the King's pardon will not make the witness competent.(n) If the pardon be conditional, the performance of the condition ought to be shewn, for on that depends all its validity. (0) Thus where the pardon is on condition of transportation for a number of years, the witness is not competent before the expiration of the term, or other lawful determination. (p) Before the statutes 6 Geo. 4. c. 25., and 7 & 8 Geo. 4. c. 28., in order to prove that a witness after conviction had been restored to his competency by pardon, the general rule was, that it was necessary to produce the pardon itself under the great seal: the privy seal, or sign manual, being held only warrants, and counter6 Geo. 4. c. 25. mandable. (q) But now by the former of these statutes, (s. 1.) it is enacted, that in all cases in which the King shall be pleased to extend his royal mercy to any offender convicted of any felony whereby the offender is excluded from benefit of clergy, and by warrant under sign manual, countersigned by one of the secretaries of state, shall grant to the offender either a free pardon or a pardon upon condition of transportation, imprisonment, or other punishment, the discharge of such offender out of custody in case of a free pardon, and the performance of the condition in case of a conditional pardon, shall have the effect of a pardon under the great seal for such offender, as to the felony of which he has been convicted. And by the latter of these statutes, (s. 13.) this enactment is enlarged to cases where the royal mercy is extended "to any offender convicted of any felony punishable with death or "otherwise." These statutes it will be observed do not extend to misdemeanors. 7 & 8 Geo. 4. c. 28. s. 13. 3. Reversal of judgment. Consequence of incompe 3dly. The incompetency may be removed by a reversal of the judgment or outlawry, which must be proved by producing the record. In Lord Lovat's case, (r) where it was objected that the witness had been attainted by an act of parliament, which subjected him to all the penalties of an attainder, unless he surrendered before a certain day, it was allowed to be shewn that the witness surrendered conformably to the act; and the record of the proceeding, commenced on the part of the crown, and defended on the part of the witness by a plea of surrender, which the Attorney-General confessed to be true, was allowed to be conclusive evidence of the fact of his surrender within the limited time. (s) The consequence of incompetency from infamy is, that as the (m) This statute provides, that the person convicted shall never be admitted to give evidence in courts of justice, until the judgment be re versed. (n) Rex v. Griepe, 1 Lord Raym. 257. Rex v. Ford, 2 Salk. 690. Gilb. Ev. 128. Bull. N. P. 292. Dover v. Maestaer, 5 Esp. 94. by Lord Ellenborough. The authorities on the effects of the King's pardon, as to the restoration of competency, are all collected and commented upon with great learn ing by Mr. Hargrave, in the second volume of his Juridical Arguments, p. 221. (0) Hawk. P. C. b. 2. c. 37. s. 45. (p) Rex v. Burridge, 3 P. Wms. 439. 1 Phil. Ev. 35. (q) Lord Warwick's case, 5 Harg. (r) 9 St. Tr. 652, 665. party cannot be a witness, so he cannot make affidavits to support tency from in- soner. The competency of accomplices, as it arises out of the rules of Accomplices. law relating to incompetency from infamy, may be properly considered in this place. It has already appeared in the investiga- Evidence ation of the latter subject, that, though it be shewn by a witness's gainst the priown admission, that he has been guilty of an infamous crime, he will not be deemed incompetent without other proper proof that he has been convicted of it: from which it necessarily follows, that the testimony of an avowed accomplice with the prisoner at the bar is not to be excluded from being given against him; and accordingly it has been long a settled rule, that an accomplice may give evidence against his associates, provided he has not been already convicted:(x) so he may indeed, even after a conviction, if judgment has not passed, for it is not the conviction, but the judgment that creates the disability. (y) And not only if two or more persons are accomplices, may one, who is not indicted, be a witness against the others; but he may also be so, it seems, when he is indicted jointly with his partners in guilt, (2) (although it is not usual or proper to include him in the indictment(a),) provided he has not been put on his trial at the same time with the others. (b) It was formerly thought that an accomplice separately indicted for the same offence, could not be a wit- Indicted sepaness against his associate, unless he had first pleaded guilty to rately. his indictment; (c) but the rule is now otherwise. (d) It is also Promise of now perfectly settled, though contrary to one great authority, (e) pardon or rethat no promise of pardon or reward, whether absolute or conditional, will render an accomplice incompetent, (f) although the circumstances under which his evidence is given ought to have great weight with a jury in considering the credit to which such evidence is entitled. The practice of admitting the testimony of Approvement. accomplices and the promise of pardon, express or implied, under which they usually give their evidence, were introduced instead of the ancient system of approvement, which Lord Hale, in his (s) Davis's case, 2 Salk. 461. Walker v. Kearney, 2 Stra. 1148. 2 Hawk. c. 46. s. 103. 2 Salk. 461. (1) Davis's case, Charlesworth's case, cited 2 Stra.1148. (u) 2 Salk. 461. (v) 2 Hawk. c. 46. s. 103. (w) Jones v. Mason, 2 Stra. 833. (x) 2 Hawk. P. C. c. 46. s. 94, 95. Tonge's case, Kel. 17, 18. 1 Hale P. C. 303, 304. (y) 1 Phil. Ev. 38. And the information of a dead accomplice, taken by a justice of the peace, may be read in evidence against the prisoner. Rex v. Westbeer, I Leach 12. (z) 1 Hale P. C. 305. (b) Stark. Ev. Pt. IV. p. 22. In (c) Sir Percy Cresby's case, 1 Hale P. C. 303. (d) 1 Phil. Ev. 38. (e) Lord Hale, 2 P. C. 280. (f) Tonge's case, Kel. 17. Layer's case, 6 St. Tr. 259. 2 Hawk. P. C. c. ward. Pleas of the Crown, speaks of as having been already long disused.(g) Approvement was when a prisoner, arraigned for treason or felony, confessed the fact before plea pleaded, and appealed or accused others his accomplices of the same crime, in order to obtain his pardon. (4) He was also bound to discover on oath, not only the particular crime charged upon him, but all treasons and felonies of which he could give any information. (i) It was purely in the discretion of the Court to permit the approvement or not; if they allowed it, the party accused was put on his trial whereon, if he was convicted, the approver had his pardon ex debito justitiæ:(j) if he was acquitted, the approved received judgment of death upon his own confession of the indictment. (k) All the good that could be expected from this method of approvement is now more fully provided for and secured by one of the following methods: 1st, In the case of offences relating to coining and uttering counterfeit money, the statutes 6 & 7 W. 3. c. 17. s. 12., and 15 Geo. 2. c. 28. s. 8., 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 be entitled to a pardon. (7) 2dly, By special proclamation in the Gazette or otherwise, pardon is sometimes promised upon certain conditions. Accomplices within these two classes have a right to pardon.(m) 3dly, By the practice most usually adopted, accomplices are admitted to give evidence for the Crown, under an implied promise of pardon, on condition of their making a full and fair confession of the truth.(n) On a strict and ample performance of this condition, to the satisfaction of the Judge presiding at the trial, (although they are not of right entitled to pardon,) they have an equitable title to a recommendation for the King's mercy. (o) They cannot plead this in bar to an indictment against them, nor can they avail themselves of it as a defence on their trial, though it may be made the ground of a motion for putting off the trial, in order to give the prisoner time for an application in another quarter. (p) And if an accomplice, after being received as a witness against his companions, breaks the condition on which he is admitted, and refuses to give full and fair information, he will be sent to trial to answer for his share of guilt in the transaction. (q) It is not a matter of course to admit an of 46. s. 135. 1 Hale P. C. 304. 1 Phil. Ev. 38. Stark. on Ev. Pt. IV. p. 22. (g) 2 Hale 226. (h) 4 Black. Com. 330. (i) 2 Hale P. C. 227. (j) 4 Black. Com. 330. (k) Ibid. (1) Ibid. Ante, Vol. I. p. 82. (m) Rex v. Rudd, Cowp. 334., by Lord Mansfield in giving judgment. S. P. S. C. Leach 118. 4th edit. (n) Ibid. 1 Phil. 37. (0) Ibid. This equitable claim to pardon does not protect an accomplice from prosecutions for other offences in which he was not concerned with the Prisoner. 1 Phil. Ev. 37. n. 7. Rex v. Lee, Russ. & Ry. C. C. R. 361. Rex v. Brunton, ibid. 454. S. C. MS. Burn's Just. by Chetwynd, tit. Approver. With respect to such offences, therefore, he is not bound to answer on his cross-examination. West's case, MS. 1 Phil. Ev. ubi supra. But the Judges will not in general admit an accomplice as King's evidence, if it appear that he is charged with any other felony than that on the trial of which he is to be a witness. This was stated by Mr. Justice Park in several cases on the Oxford Spring circuit, 1826, Carr. Crim. L. 67. (p) 1 Phil. Ev. 37. (q) Ibid. In a late instance, a prisoner who had made a confession, fender as witness on the trial of his associates, not even after he has been so allowed by the committing magistrate. The practice is, (where the accomplice is in custody,) for the counsel for the prosecution to move that the accomplice be allowed to go before the Grand Jury, pledging his own opinion, after a perusal of the facts of the case, that his testimony is essential. (r) In prosecutions for a misdemeanor in receiving stolen goods, on Principal fethe repealed statute 22 Geo. 3. c.58., the principal felon, though not lon a witness. convicted or pardoned, was a competent witness against the receiver.(s) So the principal felon may be a witness under statute 4 Geo. 1. c. 10. s. 4., against a party indicted for taking a reward to help to stolen goods. (t) So in an information under 2 Geo. 2. c. 24.(u) for bribery at an election, a person who has received a Information bribe may be a witness against the defendant, though in case of for bribery. a conviction he would be indemnified from the penalties of the act.(v) evidence alone sufficient. firmation It being established that an accomplice is a competent witness, Accomplice's the consequence is inevitable, that if credit be given to his evidence, it requires no confirmation from another witness. (w) And therefore, in strictness, if the jury believe the evidence of an accomplice, they may legally convict a prisoner upon it, though it stands totally uncorroborated. (r) But from a consideration of What conthe situation of the witness, it is the practice (resting, however, usually rewholly in discretion (y),) for the Court to direct the jury to acquit quired. the prisoner, unless part of the accomplice's testimony be confirmed by unimpeachable evidence.(z) This confirmation need not extend to every part of the accomplice's 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 suspicion. But the question is, whether he is to be believed upon points which the confirmation does not reach. And if the jury after a representation made to him by a constable in gaol, that his accomplices had been taken into custody, which was not the fact, and who, after having been admitted as a witness against his associates, on a charge of maliciously killing sheep, upon the trial denied all knowledge of the subject, was afterwards tried and convicted upon his confession. Rex v. Burley, cor. Garrow, B., Leicester Lent Assizes, 1818. And the conviction was afterwards approved of by all the Judges. MS. Stark. on Ev. Pt. IV. p. 23. (r) Stark. on Ev. Pt. XIV. p. 23. If, however, the accomplice be carried before the Grand Jury, by means of a surreptitious and illegal order, the indictment so found is good. Doctor Dodd's case, 1 Leach 155. 4th edit. (v) Bush v. Rawlins, cited by Lord Mansfield in Clarke v. Shee, Cowp. 199. Mead v. Robinson, Willes 422. (w) By Lord Ellenborough in Rex v. Jones, 2 Campb. 133. (x) Rex v. Atwood, 1 Leach 464. also cited by Grose, J., in Jordaine v. Lashbrooke, 7 T. R. 609. Rex v. Durham, 1 Leach 478. (y) Rex v. Durham, ubi supra. (z) Smith and Davis's case, I Leach 479. in n. (a) to Durham's case. They were tried for robbing George Hanter. During the night the prosecutor was attacked by four ruffians, whose persons he was unable to identify; but during the scuffle he had torn a piece of the coat which one of them had on, who on being discovered by this means turned King's evidence, and implicated the two prisoners. But the Court, although it was admitted as an established rule of law that the uncorroborated testimony of an accomplice is legal evidence, thought it too dangerous to suffer a Accomplice evidence for prisoner. find some part of his evidence satisfactorily corroborated, this is a good ground for them to believe him in other parts, as to which there is no confirmation. (a) Accordingly, where an accomplice was examined on the part of the prosecution, who was confirmed in the testimony which he gave as to some of the prisoners, but not as to the rest, Mr. Justice Bayley told the jury, that if they were satisfied by the confirmatory evidence which had been given, that the accomplice was a credible witness, they might act upon that testimony with respect to others of the prisoners, although as far as his evidence affected them it had received no confirmation; and all the prisoners were convicted. (b) To the same effect is a case mentioned by Lord Ellenborough in Rex v. Jones, (c) as having been within a few years referred to the twelve Judges, where four men were convicted of burglary on the evidence of an accomplice, who received no confirmation concerning any of the facts which proved the criminality of one of the prisoners; but the Judges were unanimously of opinion, that the conviction of all four was legal, and upon that opinion they all suffered the sentence of the law. (d) An accomplice is a competent witness for his associates as well as against them, even when they are severally indicted for the same offence, whether he is convicted or not, provided he be not disqualified by a judgment. (e) Where there is not any or very slight evidence against one of several prisoners indicted and tried together, the court will sometimes direct the jury to give their verdict as to him, and upon their acquittal of him admit his testimony for the others. (f) In a case where one of the defendants on an indictment for an assault submitted and was fined, and paid the fine, Pratt, C. J., allowed him to be a witness for the other, considering the trial at an end with respect to him. (p) But on a joint indictment against several for a misdemeanor, a defendant who suffers judgment by default cannot be a witness for the other defendants. (9) Incompetency 4. Of incompetency from interest.-All witnesses interested in from interest. the event of a suit are to be excluded from being witnesses in favour of that party to which their interest inclines them. They are excluded from a supposed want of integrity, and not as some have supposed that they may be saved from the temptation to com conviction to take place on his un- (a) 1 Phil. Ev. 39. Stark. Ev. Pt. (b) Rex v. Dawber, 3 Stark. N. P. C. 34.; in note (a) to which the learned reporter remarks, that in judging of the credit due to the testimony of an accomplice, it seems to be a necessary principle, that his testimony must be wholly received as that of a credible witness, or wholly rejected. (c) 2 Camp. 133. (d) So in Birkett's case, Russ. & Ry. C. C. R. 252., the Judges were of opinion that an accomplice did |