26 Mass. 496 | Mass. | 1830
Lead Opinion
The solicitor-general promised to furnish a list, and I think it is right that it should be done. If an indictment is found upon improper evidence, it ought to be known.
A list of the witnesses has never been refused in a case of this kind.
We are of opinion that the list shall be furnished to the counsel for the prisoner.
In impannelling the jury, a juror was asked by the prisoner’s
of counsel for the government, objected that after such an answer it was too late to challenge.
Per Curiam. We are strongly of opinion that the prisoner has a right to challenge under such circumstances. A juror may answer in such manner as to place himself above any legal exception, and yet excite distrust in the mind of the prisoner. The challenge will be peremptory.
Another juror, being questioned, said he did not know whether he had expressed an opinion or not; that from what he had read in the newspapers, he had received an impression unfavorable to the prisoner, but that he had no fixed and definite opinion on the subject; he should be governed by the evidence. The prisoner objected to the juror for cause. The counsel for the government denied that there was cause. The Court then asked the juror, if, in his opinion, he had made up his mind so that he could not give the case an impartial hear ing. The juror replied, “ that he must say that his prejudices were against the prisoner.” The challenge for cause was thereupon allowed.
Another juror, having stated that he had formed an opinion in the case from what he had heard, was asked by the counsel for the government whether he had formed such an opinion as incapacitated him from giving an impartial verdict; he replied that he did not know how much he might be influenced by his preconceived opinion ; whereupon he was challenged for cause by the counsel for the government.
Another juror, who was noted by the clerk to have been sworn in chief, stated, when the panel was called over, that he had been sworn only upon the voir dire. The prisoner’s counsel contended that the minute of the clerk was conclusive, but the Court said if the juror was under the impression that he
An inquiry was made in regard to excluding from the courtroom, all the witnesses except the one who might be under examination. The Court said that where a motion has been made for that purpose, it has generally been granted.
The Rev. Henry Colman testified as follows : — “ On the afternoon of May 28th, I went to the prisoner’s cell with his brother N. Phippen Knapp. Phippen said, ‘ Well, Frank, Joseph has determined to make a confession, and we want your consent.’ The prisoner said, in effect, he thought it hard, or not fair, that Joseph should have the advantage of making the confession, since the thing was done for his benefit. ‘ I told Joseph, when he proposed it, that it was a silly business, and would only get us into difficulty.’ Phippen, as I supposed to reconcile Frank to Joseph’s confessing, told him, that if Joseph was convicted, there wotxld be no chance for him (Joseph), but if he (Frank) was convicted, he might have some chance lor procuring a pardon. Phippen then appealed to me and asked me if I did not think so. I told him, 6 I did not know , I was unwilling to hold out any improper encouragement.’ ”
The counsel for the prisoner objected to the witness’s stating any further confessions, it appearing that a hope of pardon was held out to the prisoner if he would make a confession.
Webster, for the Commonwealth, said that as a general principle, confessions are evidence. To exclude them, the prisoner must show that they were not voluntary. In the course of the conversation referred to by the witness, the prisoner made important admissions, which the government are entitled to prove, unless they come within the exception. There is no evidence that they were obtained by encouragement or menace. No confession was asked of the prisoner, but he was merely requested to assent to his brother’s making a confession. He is not told that it will be better for him to assent ; but just the
observed that evidence of the slightest improper influence upon the prisoner, would exclude his confessions. It is said that nothing was asked, except an assent that Joseph should confess ; but such assent is itself a confession, and the prisoner was encouraged to assent, by the chance of pardon which was held out to him. That the language of Phippen was understood as encouragement, is proved by the remark of Colman, that he was unwilling to hold out improper encouragement. The natural import of the words is, if Joseph is convicted, he will have no chance ; if you confess and are convicted, there may be a hope for pardon. If the encouragement applied only to the assent, yet all that was said by the prisoner afterwards was under the same influence, and therefore cannot be received in evidence. As to the nature of this species of evidence, they cited Foster, 243 ; Phil. Ev. (1st Am. ed.) 86, 81, and note ; 2 Stark. Ev. 48 ; Rex v. Thompson, 1 Leach, 325.
Wilde J. and Morton J. expressed the e opinions, that the assent of the prisoner that Joseph should confess, would imply that the prisoner was guilty ; that the assent was given under the influence of a hope of pardon which was held out to him ; and that the subsequent admissions at the same interview must be considered to have been made under the same influence.
See Commonwealth v. Locke, 4 Pick. 485. But the prisoner is not entitled to a list of the witnesses, whom the counsel for the government propose to examine at the trial. Commonwealth v. Walton, 17 Pick. 403.
See People v. Mather, 4 Wendell, 229 ; Ex parte Vermilyea, 6 Cowen, 555 People v. Jewett 3 Wendell, 314; Mice v. State, 1 Yerger, 432; Brown v. Com monwealthy 2 Leigh, 769; JYoble v. People, 1 Breese, 29.
See 1 Chitty on Crim. Law, (3d Am. ed.) 617, 618 and cases cited in notes; Roscoe’s Dig. Crim. Ev. 123; Revised Stat. c. 135, § 14.
Dissenting Opinion
Afterwards the Court, upon the application of the counsel for the government, consented to hear a second argument upon the question.
Webster insisted, that the assent proposed to be obtained from the prisoner was not in the nature of a confession, within the rules of law admitting and excluding confessions. The principle is, that a man confesses what he is entitled to withhold ; he reveals a secret within his own breast, which he has a right to retain ; and as he- gives up some .king which the pub
What was said to the prisoner, even if had been with a view' to draw out a confession, was not a threat, nor a promise of favor, such as the law regards. It cannot be pretended that there was any threat; and an offer to increase the chance of a conviction and throw the prisoner upon executive clemency, is certainly not a promise of favor. It shall not be said to a person accused, that it will be better for him if he confesses, and worse for him if he does not confess. This is the extent of the rule. 2 Stark. Ev. 48. Making a confession must be represented to him as being for his personal benefit, not for the benefit of his friends. It must have regard to his own temporal punishment for the offence charged.
All the supposed encouragement applied solely to the point of the prisoner’s assenting to Joseph’s making a confession, and not to any confession of his own.
Dexter and Gardiner, contra. The principle in regard to confessions is, not that the party has a secret of his own which shall not be extorted from him, but that his statement, whether "t discloses a secret or not, must be made voluntarily, in order to be credible. It is said that Joseph’s confession was not the property of the prisoner. This is true ; but when asked to assent to Joseph’s confessing, his power to assent or dissent is his own property, and if he assents it implies his participation in the offence. The proposition made to him was, in its natural import, that Joseph had determined to confess, upon condition that the prisoner gave his assent; and to induce him to assent, the hope of pardon was held out to him. And if favor w-ould
The general question presented and on which we have maturely deliberated, is, whether certain confessions of the prisoner are admissible in' evidence. We know not what they are, but presume them to be important. As the question does not depend upon authorities, but upon general principles, I think we have had all the light of which the case is susceptible, and we are ready to declare our opinions.
The general principle is well settled, that the confessions of parties in civil suits or criminal prosecutions) are to be received in evidence. It is equally clear, that confessions made under some circumstances are not admissible. Where they are entirely voluntary, they are to be received ; but where they are drawn out by any expectation of favor or by menaces, they are to be rejected. The question is, whether the facts before us show a case within the exception to the general rule ; in other words, whether the confessions were voluntary or not.
In determining this question, it is proper to take into view the reason on which confessions so drawn out are excluded. It is not because of any breach of good faith in admitting-them, nor because they are extorted illegally, (though there may be cases in which this would exclude them, as where a magistrate puts the accused upon his oath,) but the reason is, that in the agitation of mind in which the party charged is supposed to be, he is liable to be influenced, by the hope of advantage or fear of injury, to state things which are not true.
In this connexion it may not be improper to state, that this influence, which is to exclude the party’s confessions, must be external influence, and not the mere operations of his own mind. It may be that his own reasonings may induce him to think that he will derive advantage from a confession, and he may thus be led to state things which are untrue, but there can be no evidence of that fact. Cases have happened, where men have been convicted on their confessions which were false, or have been acquitted against their confessions. In Hall's case the prisoner’s own motives excluded his admissions. He had asked whether he might become a witness for the crown
A question was made, whether the inducement must be of a personal nature. It may be supposed that a desire to benefit a child or other near relation, may hold out as strong an inducement to falsify, as where the advantage contemplated is entirely personal. And there is one case reported, where an innocent person was tried for his life, having made admissions against himself in order to screen his brother. Though this should seem to come within the reason of the exception, I do not find it in the books, and I am not disposed to extend the exception. Indeed I have sometimes doubted whether confessions, with the accompanying circumstances, ought not always to be received in evidence ; but the law is settled otherwise. So far as relates to this point, I consider the argument sound, that the advantage expected must be personal.
With respect to the assent of the prisoner, if it were requested in relation to an immaterial fact, not implying any guilt on his part, any subsequent statements by him would not be excluded. But the question here is, first, whether the assent of Francis to Joseph’s making a confession, would be evidence against Francis. This would depend upon the circumstances. If Francis were told what Joseph had confessed, his assent might or might not implicate himself, according to the facts stated by Joseph. But if he were told that Joseph would confess, without being told what the conféssion would be, and he were requested to assent to the making of the confession, his assent or dissent would be evidence against him ; his silence even might be urged against him, as he would naturally inquire what the confessions were to be, unless he already knew. In the present case we must take the facts as they have been disclosed by the witness. He and Phippen Knapp having gone to the cell of Francis, Phippen says, “Well, Frank, Joseph has determined to make a confession, and we want your consent.” Francis answers, that it is hard, or not fair, that Joseph should have the advantage of making a confession, when this thing was done for his benefit. Phippen then tells him, that “if Joseph is convicted, there will be no chance for him (Jo
It is argued, however, that the confession was voluntary, for though he was told he would have a chance for a pardon, yet that was proposed as an independent fact for his consideration, and not as a condition. But the question is, how was it understood ? If the remark was made not in a form to influence him, it would not exclude his confessions. It is necessary to attend to the circumstances. The prisoner is told that Joseph . is about to confess, and he is asked to give his consent. He then states his reasons why he should not consent. It is argued, that whether he consented or not, was immaterial. As to Joseph’s right to become a witness for the government, this is true ; and it is also true, that Joseph’s confessions would not be evidence against the prisoner; but the witness and Phippen went to his cell to obtain his consent. It may be that Joseph would not confess without. The reasons however are immaterial. It is enough that his consent was wanted. It was not stated to him that Joseph had confessed, but that he had determined to confess. The witness and Phippen thought the prisoner’s consent important, and so did the prisoner, as he gave his reasons for refusing it. Phippen then said, if Joseph should be convicted, he had no chance, but that if the prisoner was convicted, he had some chance of being pardoned. There can be no doubt but that this was said for the purpose of pro
The former decision of the Court I think was right, and the evidence ought not to be admitted.
Wilde J. This is an important question in an important cause, and if the established principles of law, as applied to the facts in the case, will not sustain our former decision, we certainly shall be very ready and desirous to set it right; but after the utmost attention and deliberation, I cannot say that I entertain any doubt as to the correctness of the decision.
The material facts are, that the prisoner was informed by his brother Phippen, that Joseph had concluded to confess, and that he wished to procure the prisoner’s consent ; which Phippen advised him to yield ; encouraging him with the hope of a pardon, if he should be convicted. The question is, whether, after such encouragement, the consent of the prisoner to this arrangement can be given in evidence against him.
The general rule is, that all voluntary confessions made by a person charged with an offence, may be given in evidence against him. This, however, is a very doubtful species of evidence, and is to be admitted with great caution. Hasty confessions may be easily extorted by threats or promises from a person accused of a crime, when in a state of agitation and alarm and therefore all such confessions are excluded from the consideration of the jury. The slightest influence, say the books, is sufficient to exclude them.
Then was there any influence used by Phippen, to draw from the prisoner his consent to the plan proposed ? This, it appears to me, cannot be doubted. The object of the visit to the prisoner’s cell was, to procure his consent. The hope of pardon was held out to him for the purpose of influencing him, and it must be presumed that it did influence him, for at first he objected to the proposal made.
The remaining question is, whether evidence of any subsequent confessions should be admitted. It said that these confessions were not procured by any improper influence or persuasion ; and that the prisoner was not even advised to confess. Still, however, if his assent to Phippen’s proposal be evidence against him, and is to be excluded, because it was improperly procured, then his subsequent confessions ought to be excluded also. The rule is, that when a confession has been improperly obtained, all subsequent confessions are inadmissible ; although they may have been made at different times, and to different persons ; for the presumption is, that they were made under the same influence, or in consequence of the former confession.
For these' reasons I am confirmed in my former opinion, that the evidence offered is wholly inadmissible.
Putnam J, The government offer to give the confessions of the prisoner in evidence. His counsel object, because, as they allege, it appears that those confessions were drawn from
I propose now to consider, whether any promise of favor oi threat of harm, was made to the prisoner, which can reasonably be considered as influencing his mind to make the confession. If it was so, the law throws its protection around him and rejects the confessions ; if it was not so, the government have a right to the evidence. The Court is called upon to execute a well known and established rule of the law, and not to decide a matter of mere discretion. The witness, the Rev Henry Colman, has clearly and deliberately stated the conversation which passed between the prisoner and his brother N. Phippen Knapp and himself, at the interview, before the confessions were made, and the question now is, whether there was any promise of favor if the prisoner would confess himself, or any threat of harm if he would not confess himself, contained in that conversation. T can see neither threat nor promise, which has the least application to the question whether the prisoner himself would make any confession. The only
Let us consider the effect which was apparently produced in the mind of the prisoner from the disclosure and proposal c f his brother Phippen. He announced Joseph’s determination to confess. That had been taken without consultation wi'h. Francis. It was evidently Joseph’s affair. Francis must have seen, that it was not a measure which he could control. He could not compel Joseph to confess, if he were unwilling , he could not prevent Joseph from confessing, if he chose to confess. If indeed Francis knew that Joseph originally proposed the thing for his own benefit, it would indeed seem hard that he should have the advantage of becoming a witness for the State. Francis did réason in that way. He was in the full possession of his mind, and seemed unwilling to relinquish to Joseph the benefit of becoming a State’s witness. It must have been known that one only of them could be admitted to that privilege. When they desired Francis to assent to Joseph’s becoming the witness, it is clear that he must have given up his chance of being a witness himself. The proposal was, therefore, that Francis should assent to something which was personally disadvantageous. But it is said, there was the hope of a pardon held out to him if he. would consent that Joseph should confess, and that his youth and magnanimity and his being drawn in by Joseph to the criminal act, would recommend him to the mercy of the executive. The amount of this argument, after all, is, that Francis might have been induced to believe that it would be better for him, that Joseph should certainly escape, and that Francis should have only a chance of a pardon if he should be convicted, than that Francis should certainly escape by becoming a witness for the State. There was then no benefit proposed to him.
If the prisoner had granted the request of his brother Phippen, the fact would have been wholly immaterial upon this trial. Could the government have urged the jury to convict Francis, upon that fact ? Would it follow, that because Francis was willing Joseph should confess himself to he guilty, he
Wilde J. and Morton J. The question has been argued upon the supposition that he did assent, and we have so considered it; but if no effect was produced by the proposition made to him, the evidence of his confessions is admissible. The question to the witness should be put in such form as not to draw out an answer that the prisoner did assent.
Upon this intimation the witness was asked if the prisoner refused to assent. The witness answered, that there was neither assent nor refusal.
Dexter. An assent is implied, if there was no direct refusal.
Wilde J. and Morton J. The witness says no assent was given or refused. The general rule is, that confessions are admissible, and it is for the prisoner to show that he comes within the exception. If it is left uncertain whether the exception applies, the evidence is to be admitted, and if it shall appear that the confessions ought to be excluded, the jury will be so instructed. As the evidence now stands, it is not sufficient to authorize the Court to say there was an assent; and the confessions therefore must be received.
The Attorney- General opened this cause, and he obtained leave of the Court that Webster might aid him in the management of it, and close on the part of the government. When the foregoing point of law respecting the admissibility of the prisoner’s confessions came on for argument the second time, it was stated that the Solicitor-General had prepared himself to argue the question. But the Court ruled, that the cause must be conducted, both in regard to matters of law and matters of fact, by two counsel only on the part of the government. See St. 1785, c. 23, § 2.
After the decision by which the confessions were ruled out, the witnéss was asked on the part of the government, whether any place was pointed out by the prisoner, where a weapon
The counsel for the prisoner, in order to discredit the testimony of Palmer, a witness examined on the part of the government, produced the record of his conviction in the Court of Common Pleas in the State of Maine, for shop-breaking, with intent to steal. The counsel for the government faintly objected to its admission, it being evidence of a single act of misconduct on the part of the witness ; but the Court said it was clearly admissible to affect the witness’s credibility. See Commonwealth v. Green, 17 Mass. R. 527, 531, 549.
The evidence in the case tended to prove that Richard Crowninshield alone entered the house of White and there perpetrated the murder, and that the prisoner was in a street about 300 feet distant from the house, aiding and abetting.
Dexter. Upon this evidence the prisoner cannot be convicted as a principal in the murder. A principal in the second degree, according to the law of England, is by our statutes an accessory before the fact, and cannot be tried until there has been a conviction of the principal in the first degree. In this Commonwealth, the crime of murder and the trial and punishment, depend entirely on our statutes ; which repeal the common law on this subject. The St. 1784, c. 44', entitled “an act against murder and manslaughter,” provides, “ that whosoever shall commit wilful murder, shall suffer the pains of death.”
The St. 1784, c. 65, entitled “an act against accessories to crimes and felonious assaulters,” enacts, in § 1, “that if any person shall aid, assist, abet, counsel, hire, command or pro-
Morton (Attorney-General) said the St. 1784, c. 65, had. reference to persons who were aiding and abetting, not being present. The words aiding, abetting, assisting, though more usually applied to principals, are also applicable to accessories before the fact. But this statute is repealed by St 1804, c
Dexter. The words aiding and abetting are technical, and include more than accessories at common law. In Commonwealth v. Macomber, 3 Mass. R. 257, Parsons C. J. says, “ the words ‘ aiding and consenting in the commission of the offence ’ naturally include all thus aiding and consenting, whether present or absent.” To imply that the words being absent were undesignedly omitted in the statute of 1784, is departing widely from the strictness commonly observed in the construction of penal statutes.
Putnam J. delivered the opinion of the Court. By the most ancient common law, as it was generally understood, those persons only were considered as principals in murder, who actually killed the man, and those who were present, aiding and abetting, were considered as accessories. So that if he who gave the mortal blow were not convicted, he who was present and aiding, being only an accessory, could not be put upon his trial. But the law was otherwise settled in the reign of Henry IV. It was then adjudged, that he .who was present, aiding and abetting him who actually killed, was to be considered as actually killing, as much as if he himself had given the deadly blow. The law has been so understood from that time to the present, unless it has been altered by our legislature by St. 1784, c. 65, as has been contended by the counsel for the prisoner.
It is urged, that by the first section of that statute, the distinction previously existing between persons present, and persons not present, aiding and abetting the commission of the felony, was done away ; so that all persons, whether present or absent, who should only aid and abet another to commit murder or other felony, should be considered and taken to be accessories only, and have all the privileges of accessories, — one of which was, not to be compelled to answer before the principal offender should have been convicted.
As this point is of great importance in the case, the Court have examined it with care, and after much deliberation, are of opinion that the St. 1784, c. 65,
It is an established rule, that a statute is not to be construed so as to repeal the common law, unless the intent to alter it is clearly expressed. No such intention can be reasonably inferred from the language of these statutes. The words of the statute of 1784 describe accessories before and after the fact, and if it had been the intention of the legislature to restore the old distinction as to accessories at the fact, it would have described such offenders by apt words.
When technical words are used, they are to be understood in their technical sense and meaning, unless the contrary clearly appears. The object of this statute being to provide for the punishment of accessories, we must conclude that it related , only to accessories in the legal sense at the time of the passage of the act, and not to those who were in the eye of the law then regarded as principals. So that construing the statute of 1784, c. 65, by its own language, we do not think it can be understood as relating to persons present aiding and abetting in the commission of a felony.
And we think that the St. 1.804, c. 123, § 1, contains a legislative construction to the same effect. It seems to be very clear, that this statute regards persons present aiding, &c. as principals ; for otherwise persons present, and persons absent, would not have been separately described, those who were absent being considered as accessories. So that if the former statute had been doubtful, the doubt would have been removed by the latter; especially when it is considered that all the statutes upon the same subject are to be construed as one statute.
The jury not being able to agree upon a verdict, were discharged of the cause. The prisoner’s counsel then moved for a continuance, and in support of the motion they offered an affidavit of the prisoner himself, which stated the absence of a material witness and the facts to which he would testify. Web
In the first trial the prisoner’s counsel moved that the jury might view the house where the murder was committed, and the ground in the vicinity, and the Attorney- General expressed his desire that the motion should be granted. But per Curiam. We refused such a request in another case, and it does not appear to us that a view is necessary. It is attended with many inconveniences. We know not what the jury may hear and what impressions may be made upon them while they are taking the view. The case should be decided by the evidence given in court.
Upon the second trial the jury themselves requested that they might be permitted to see the place of the murder, and the counsel on both sides expressed their desire that permission should be allowed. The prisoner likewise gave his consent. The Court granted the request, but with hesitation, because they said this course was without precedent, and if it should turn out to be incorrect, they had doubts whether they could hold the prisoner to his consent. The Court directed that no person should go vvilh the jury, except the officers having them in charge, and that no person should speak to them, under penalty of a contempt. Plans were exhibited and explained to the jury in court, and they were permitted to take them with them.
In regard to presence, Dexter contended that to make a man a principal by aiding and abetting in a felony, he must be in such a situation at the moment when the crime is committed, that he can render actual and immediate assistance to the perpetrator ; and that he must be there by agreement, and with the intent to render such assistance.
Webster maintained that to constitute a presence, it is suffi
He also urged, that when it is proved that several persons conspired to commit a murder, and that the crime has been perpetrated by them, and there is no evidence of a part being assigned to one of them which would make him an accessory, the law presumes that all of them were principals ; that if one goes out with the others, with the design of bearing some part in the transaction, and it does not appear that he acted as an accessory, he must be deemed a principal; that if the prisoner went out to bear some part in the murder, and the government prove that he went towards the place where it was committed, th‘e presumption is that he went near enough to answer the purpose in view, unless he rebuts the presumption by evidence to the contrary.
Putnam J., in behalf of the whole Court, instructed the jury as follows. There is no evidence that the prisoner gave the mortal blows with his own hand; but it is contended on the part of the government, that he was present, aiding and abetting the perpetrator, at the time when the crime was committed. We are therefore to. consider what facts are necessary to be proved to constitute him, who is aiding and abetting, to be a principal in the murder ; or, in other words, what, in the sense of the law, is meant by being present, aiding and abetting.
It is laid down in Foster’s Crown Law, 349, 350, Discourse 3, § 4, that “ when the law requireth the presence of the accomplice at the perpetration of the fact, in order to render him a principal, it doth not require a strict, actual, immediate presence, such a presence as would make him an eye or ear wit-' ness of what passeth. Several persons set out together, or in small parties, upon one common design, be it murder or other felony, or for any other purpose unlawful in itself, and each taketh the part assigned him ; some to commit the fact, others to watch at proper distances and stations to. prevent a surprise,
The person charged as a principal in the second degree must be present; and he must be aiding and abetting the murder. But if the abettor, at the time of the commission of the crime, were assenting to the murder, and in a situation where he might render some aid to the perpetrator, ready to give it if necessary, according to an appointment or agreement with him for that purpose, he would, in the judgment of the law, be present and aiding in the commission of the crime. It must therefore be proved, that the abettor was in a situation in which he might render his assistance, in some manner, to the commission of the offence. It must be proved, that he was in such a situation, by agreement with the perpetrator of the crime, or with his previous Knowledge, consenting to the crime, and for the purpose of rendering aid and encouragement in the commission of it. It must also be proved, that he was actually aiding and abetting the perpetrator at the time of the murder. But if the abettor were consenting to the murder, and in a situation in which he might render any aid, by arrangement with
We do not however assent to the position which' has been taken by the counsel for the government, that if it should be proved that the prisoner conspired with others to procure the murder to be committed, it follows as a legal presumption, that the prisoner aided in the actual perpetration of the crime unless he can show the contrary to the jury. The fact of the conspiracy being proved against the prisoner, is to be weighed as evidence in the case having a tendency to prove that the prisoner aided, but it is not in itself to be taken as a legal presumption of his having aided unless disproved by him. It is a question of evidence for the consideration of the jury.
If, however, the jury should be of opinion, that the prisoner was one of the conspirators, and in a situation in which he might have given some aid to the perpetrator at the time of the murder, then it would follow, as a legal presumption, that he was there to carry into effect the concerted crime, and it would be for the prisoner to rebut that presumption, by showing to the jury that he was there for another purpose unconnected with the conspiracy. We are all of opinion that these are the principles of the law applicable to the case upon trial.
See Roscoe’s Dig Grim. Ev. 28 et seq.; 1 Chitty on Grim Law, (3d Am. ea.) 570 et seq. and notes; Phillips's case, 1 Moody’s C. C. 271; Moore v.
See State v. Crank, 2 Bailey, 67; Jacfcsons case, 1 Rogers’s Rec. 28, Stages's case, 5 Rogers’s Rec. 177; Roscoe’s Dig. Crim. Ev. 36 et seq.; 1 Chitty on Crim. Law, (3d Am. ed.) 571, 572.
Confirmed in Revised Stat. c. 94, ^ 56.
See Revised Stat. c. 133, § 1.
See State v. Morris, 1 Overton, 220; State v. Zellers, 2 Halsted, 220.
The Court may order a view by any jury empannelled to try a criminal case. Revised Stat. c. 137, § 10.