tendency of any mixture of error in testimony is to lessen the probability of the whole. This diminution is in many cases so small, as not perceptibly to affect our belief. But where an essential circumstance in a story is evidently unfounded, it is to pull a stone out of an arch; the whole fabric must fall to the ground." CHAPTER XLIV. CREDIT DUE TO WITNESSES. § 778. In determining on the credit due to the witnesses, the Judge should have regard to the following considerations : 1st. Their integrity. 2nd. Their ability. 3rd. Their number and consistency with each other. § 779. A Judge is to weigh not to number witnesses. Thus the testimony of an infamous witness is not to be rejected on that account; but the circumstance is one of the deepest moment in weighing the amount of credit due to him. See Starkie, page 821. "A witness of depraved and abandoned character may not be unworthy of credit, where it appears that there is not the slightest motive or inducement for misrepresentation; for there is a natural tendency to declare the truth, which is never wholly eradicated, even from the most vicious minds; and the danger of detection, and the risk of temporal punishment, may operate restraints upon the most unprincipled, even where motives for veracity of a higher nature are wanting. "But it is be remarked, that it is difficult to detect the motives which may influence a depraved and corrupted mind; and hence it is for the jury to consider, whether the apparent want of motive to deceive be sufficient to accredit an exceptionable witness, and whether some assurance of the actual absence of such a motive be not necessary to warrant their confidence. A jury may, no doubt, in a criminal case, convict on the testimony of an accomplice, but then it is expected that the tainted credit of the witness should be supported by circumstances confirmatory of his testimony in material points; so that in practice such a witness is considered to be incredible, unless his testimony be supported by undoubted facts and unexceptionable witnesses. "It frequently happens that a witness labors under some influence arising from natural affection, near connexion, or mere expectation of contingent benefit or evil, which may afford a strong temptation to perjury. In these as in so many other cases, it is for the jury to estimate the degree of influence by which the testimony of a witness is likely to be corrupted, and to determine whether, under all the circumstances, he be the witness of truth." § 780. We may conveniently here consider the weight due to an accomplice, a species of infamous witness. When an accomplice is admitted as an approver, he of course confesses his own guilt, and is therefore infamous. The evidence of an accomplice should never be had recourse to except from necessity; that is to say, if the case can be proved without him; and not unless it will be proved by him. A conviction on the uncorroborated testimony of an accomplice, accor ding to the English law, is legal. An approver, according to the old English practice confessed his guilt, and if his partners in crime were convicted, he was pardoned : if they were acquitted, he was hung. Now, he is not necessarily exempted from prosecution, but he is promised a pardon if he speaks the truth as regards himself and his accomplice; and where an approver has confessed his own guilt and afterwards denies all knowledge of the crime, he has been convicted on his own confession. See Burley's case.(1) Judgment of death was recorded in such a case. § 781. But it is so dangerous a practice, that it is now not held sufficiently satisfactory, unless the evidence of the accomplice is confirmed; not of course as to the whole of it, for then there would be no occasion to resort to his evidence, but as to some material point or points. 782. It has been a question what facts must be confirmed. The rule to be deduced from all the authorities seems to be, that the point confirmed must affect the prisoner charged. In Addis' case,(m) Patterson, J., said: : "The corroboration of an accomplice ought to be as to some fact or facts, the truth or falsehood of which goes to prove or disprove the offence charged against the prisoner. So, where it was proposed on the part of the prosecution to confirm the accomplice as to the mode in which the felony was committed, Williams, J., said that something ought to be proved tending to bring the matter home to the prisoners, and that proving, by other witnesses that the robbery was committed, in the way described by the accomplice, was not such a confirmation as would entitle his evidence to credit, so as to affect other persons-which indeed would be no confirmation at all, since every one would give credit to a man avowing himself a principal felon, for at least knowing how the felony was committed." Webb's case, 6 C. & P. 595. In a more recent case, Alderson, B., observed, "that there is great difference between confirmations as to the circumstances of the felony, and those which apply to the individuals charged, the former only prove that the accomplice was present at the commission of the offence, the latter show that the prisoners were connected with it." "In a recent case, where an accomplice, in giving evidence against two prisoners, was confirmed only as to his statement against one of them, Alderson, B., directed the jury not to take that as a confirmation of his testimony against the other. Jenkin's case, 1 Cox's C.C. 117. But in Andrew's case, I Cox's C. C. 133, Coleridge, J., said, "I do not think it necessary that there should be a confirmation as to each of the prisoners; a confirmation as to one will be sufficient. It is a question for the jury. I think it right to say that, in my opinion, the necessity for the confirmation of an accomplice has been stated too strongly in some of the cases. I do not wish it to be understood that I am overruling any of the decided cases; but it appears to me that even the testimony of an accomplice, though entirely unconfirmed, must go to the jury, accompanied of course by such recommendations as the Judge in such case should feel it his duty to make. If a witness be admissible at all, I have no right to withdraw his testimony from the consideration of the jury, and the law having admitted the evidence of an accomplice, it is the province of the jury to determine its value." The latest case upon the subject is that of R. v. Stubbs,(n) Jervis, C. J., said as follows: "It is not a rule of law that an accomplice mnst be confirmed, in order to render a conviction valid, and it is the duty of the Judge to tell the jury that they may, if they please, act on the unconfirmed testimony of an accomplice. It is a rule of practice, and that only, and it is usual in practice for the Judge to advise the jury not to convict on the testimony of an accomplice alone, and juries generally attend to the direction of the Judge, and require confirmation. There is a further point in this case. Where an accomplice speaks as to the guilt of three prisoners, and is confirmed as to two of them only, the jury may, no doubt, if they please, act on the evidence of the accomplice alone as to the third prisoner; but it is proper for the (n) 1 Dearly's Cr. C. 555. Judge in such a case to advise the jury that it is safer to require confirmation of the testimony of the accomplice as to the third prisoner, and not to act upon his evidence alone; for nothing is so easy as for the accomplice, speaking truly as to all the other facts of the case, to put the third man in his own place; but a jury may, if they choose, act on the unconfirmed testimony of an accomplice; in this case they have acted on the evidence before them, and we cannot interfere." It is for the Judge to say whether the confirmation is sufficient.(0) See Arbuthnot's Select Cases, p. 159. "To entitle the evidence of an accomplice to credit, confirmation is required upon some point affecting the person of the prisoner or prisoners charged." And where there are several prisoners, confirmation is requisite as to each prisoner, to sustain a conviction against each. Cr. Pt. 123, from Tinnevelly, 16th Nov. 1863.- Scotland, C. J., and Phillips, J. § 783. Of course admissions by convicted accomplices (not approvers) cannot be received against any of the co-defendants. See Morley's Digest, N. S. Tit. Cr. Law, c. 117. "The confession of an accomplice is evidence only against himself, and can in no way be made use of against another. Suroop Sook v. Santram Urf Jeram Bin Sidgun. 20th Sep. 1827. S. F. A. Rep. 1.-Romer and Anderson." § 784. It may be well to mention that according to the Mahomedan Law, the evidence of accomplices, even if corroborated, is insufficient for a conviction, though sufficient to warrant a presumption. See Morley's Dig. Tit. Cr. Law, c. 219. "The evidence of accomplice is insufficient, under the Mahommedan law to prove any criminal charge, though admitted, when corroborated by other evidence, to establish violent presumptions. Radhacant Doss and other v. Mohadeyb. 2nd Jan. 1815. N. I. A. Rep. 304.-Fombelle." § 785. The manner or demeanor of a witness is ever to be closely watched. This scrutiny affords Courts of original jurisdiction one vast superiority over Courts of appeal, the functions of which should be confined to a supervision of rulings of law, if only the Original Courts were sufficiently qualified by experience and education to come, generally speaking, to correct conclusions on matters of fact. (0) See Act II of 1855, Sec. XXVIII. § 786. A witness may display reluctance, evasion, affectation of dulness, exaggeration, over-willingness. Starkie writes :-(p) "In arriving at this conclusion, a consideration of the demeanor of the witness upon the trial, and of the manner of giving his evidence, both in chief and upon cross-examination, is oftentimes not less material than the testimony itself. An over-forward and hasty zeal on the part of the witness in giving testimony which will benefit the party whose witness he is, his exaggeration of circumstances, his reluctance in giving adverse evidence, his slowness in answering, his evasive replies, his affectation of not hearing, or not understanding the question, for the purpose of gaining time to consider the effect of his answer; precipitancy in answering, without waiting to hear or to understand the nature of the question; his inability to detail any circumstances wherein, if his testimony were untrue, he would be open to contradiction, or his forwardness in minutely detailing those where he knows contradiction to be impossible; and affectation of indifference; are all to a greater or less extent obvious marks of insincerity. "On the other hand, his promptness and frankness in answering questions without regard to consequences, and especially his unhesitating readiness in stating all the circumstances attending the transaction, by which he opens a wide field for contradiction if his testimony be false, are, as well as numerous others of a similar nature, strong internal indications of his sincerity. The means thus afforded by a vivá voce examination, of judging of the credit due to witnesses, especially where their statements conflict, are of incalculable advantage in the investigations of truth; they not unfrequently supply the only true test by which the real characters of the witnesses can be appreciated." § 787. It is with regard to these matters that cross-examination is usually very effective.(4) § 788. Having carefully scrutinized the demeanor of the witness, the Judge should test his ability, by which is not meant his intellect alone, but his ability to speak the truth from his accurate acquaintance with the facts which he reports. This depends upon the opportunity the witness has had of remarking the facts; his accuracy of discernment; his retentiveness of memory; his powers of narration. On these points he should be searched; and with reference to these the Judge will bear in mind the greater or less length of time which has elapsed since the events related; the treachery of human memory; the motive to color or soften; the quality of the intellect before him, On this Starkie writes:-(1) (p) Page 822. (4) The whole chapter of Best on Rules for the examination of witnesses, 20-634 should be read. (r) Page 824. |