9 Mich. 314 | Mich. | 1861
The Legislature of 1861, by the passage of the Act, No. 125, amendatory of the law of evidence, evidently intended to render all parties (except as is therein excepted) competent witnesses in civil cases only. This is obvious from an examination of the law as it existed before such amendment, and of the amendatory act. As the law stood prior to the act of 1861, all persons could be witnesses except parties nampd in the record, or in whose behalf suit was prosecuted or defended, or the husband or wife of a party. A party could be made a witness only upon an affidavit being made and filed by the adversary party, that facts were within the knowledge of such party which could be proven by no other person. In no' case could a party testify as a witness in his own behalf: he must have been called by his adversary. Under that statute
The act of 1861 removed all disability of parties, except as therein otherwise provided; and among other provisions contains the following: “Nothing in this act shall be construed as giving the right to compel a defendant in criminal cases to testify, but any such defendant shall be at liberty to make a statement to the court or jury, and may be cross examined upon any such statement.” This provision it is clear has the effect to confine the operation of the act to civil cases, allowing the accused in criminal cases to make a statement or not at his option. The difficulty seems to have arisen from the use of the word “compel;” but had the Legislature designed to allow him. to be a witness, although not compellable, very different language would have been employed from that found in the act, to express such an intention The act declares what he may do; and this declaration excludes the presumption that any. other right was conferred. If the People can not compel him to testify, neither can he force his testimony upon them. Otherwise there would be no reciprocal rights, and the prisoner would possess the double advantage of offering his sworn or 'his unsworn statement at his option. The Legislature did not confer, nor intend to confer, upon a person accused of crime, a right superior to that given to parties in civil actions, either by allowing him' to swear in his own behalf, while he is not compellable to swear at the call of the People, nor by giving him the additional right of making his statement without oath, if safety or caution suggested it. We are therefore of opinion that he can only make a statement, and that such statement can not be upon oath.
There was no error in the ruling of the Circuit Judge, and judgment should pass according to the verdict.
The only question arising in this case is, whether a prisoner on trial can demand to be sworn on his own behalf, to give evidence in the cause.
The statute of 1861, which makes parties competent witnesses, and compellable as well as allowable to testify in the same manner as other witnesses, contains this proviso: “Nothing in this act shall be construed as giving the right to compel a defendant in criminal cases to testify, but any such defendant shall be at liberty to make a statement to the court or jury, and may be cross examined upon such statement.” Laws 1861, p. 169.
Taking this statute alone, without reference to any extrinsic considerations, I think it would fairly be construed as authorizing the defendant to be sworn. And if we looked no further than our other statutes, the changes they have made in the common .law rule would not lead to any other conclusion. They have announced it as our policy to make neither interest, nor suspicion or conviction of crime, any bar to the admission of witnesses, leaving- it to the jury in each case to determine on the credibility of their testimony. If no such objection is to prevail, a prisoner at the bar, whose innocence must be presumed until disproved, is in no worse position of unfitness to testify than others, and such objections as may exist against his credibility are sufficiently apparent here as in other cases. My impressions have been, for these reasons, in favor of such a construction as will permit him to be sworn. But on reflection, and examination of the whole subject, I have come to a different conclusion; although the question is not to my mind entirely free from difficulty. The difficulty is increased by the fact that while the statute of 1861 is substantially borrowed from the English act of 14 and 15 Yic. c. 99, the section of that act refe™ng 1° defendants in criminal cases is changed in
There was, however, much force in the view presented, that the subject is one over which the Legislature has not complete control. The Constitution does not permit any man to be compelled in any criminal case to be a witness against himself: — Const. of Mich. Art. 6, §32, This prohibition would undoubtedly apply as well to prevent questioning without oath as with. The French law, under which the questioning of the prisoner has been by some authorities likened to the “ questioning” by torture, does not put him under oath. Under the law of England (under which our principle that no man should be oom
Although no statute has yet, so far as I am aware, changed the old rules of practice in England, it is welj knqwn that for many years it has been debated there whether some provision should not be made, whereby a prisoner’s version of facts might be got at, so as to elicit
It is very manifest that such proceedings are quite as much in violation of the spirit of the constitutional maxim as if the defendant were examined on oath. That maxim was the result of an experience which showed that in the hands of tyrannical prosecutors and courts, less governed by public opinion than in modem times, it was no difficult matter to wrest innocent admissions and statements to purposes of condemnation. According to the theory of the law, both courts and prosecutors are now regarded as bound to see that a defendant be not unjustly convicted: — Regina v. Thursfield, 8 C. & P. 209. But every one familiar with courts knows that, with the best intentions, it is very difficult, when interrogating a person, to abstain from pressing him further than such a theory would strictly warrant, and with that “increasing energy” which is enjoined by the Austrian Code, where prisoners do not answer readily: — Sandford’s Penal Codes, 366. And if we were to hold that a prisoner offering to make a statement must be sworn in the cause as a witness, it would be difficult to protect his constitutional rights in spite of every caution, and would often lay innocent par
I think the statute of 1861, when it permits a statement to be made, is best reconciled with the Constitution by construing such statement to be a narrative of such facts as a prisoner may see fit to state. A cross examination on such a statement would not, therefore, be allowed to go beyond it. It could not properly extend over the entire issue, as it might if he were a general witness, neither could it go into any of the collateral inquiries whereby a witness’ credit or memory is sometimes tested. And while his constitutional right of declining to answer questions can not be removed, yet a refusal by a party to answer any fair question not going outside of what he has offered to explain, would have its proper weight with the jury.
The use of such a statement is pointed out by those who have discussed this subject, and it is by no means trifling. It is a settled maxim in criminal law, that no one should be convicted unless the testimony taken together is not fairly consistent with any theory but guilt. There are many cases where convictions are had in which it is extremely difficult to say whether there was not room for a reasonable doubt, and many more where suspicious facts are susceptible of explanation were evidence attainable. If a prisoner makes a statement which is consistent as well as apparently sincere, it may often remove those doubts. A jury is not bound to believe all that every prisoner says, any more than all that each witness says.
Instead of being a dangerous innovation, I think there is much reason to regard the statement of a prisoner, made in the way suggested, as by no means a novelty in our law.
In Regina v. Malings, 8 C. & P. 242, a prisoner was indicted for having maliciously wounded one Benjamin Churchill, with intent to do him some grievous bodily harm. Churchill made out a case, and no other person was cognizant of the facts, as he was alone with prisoner when the assault took place. Alderson B. permitted the prisoner to make a statement to the jury before his counsel addressed them, and they were satisfied with his explanation, and found him guilty of a simple, assault only. In allowing this, the judge expressed his opinion of the justice of permitting a prisoner to make such a statement, and remarked that in cases of high treason it was always allowed. It is to be observed also that the only ground of objection raised was that the prisoner had counsel, and should leave all his case in their hands. In Regina v. Walkling, 8 C. & P. 243, the prisoner, although having-counsel, was permitted on the authority of Maling’s case, to read a written statement; but it was said by Gurney B. that it should not be drawn into a precedent. In Regina v. Boucher, 8 C. & P. 141, and Regina v. Beard, 8 C. & P. 142, it had been held that a prisoner who had
The objections in the cases cited were all based on the fact that the prisoner had counsel to address the jury. How far prisoners had been permitted to go previously, is not to be ascertained from the books of practice; but from the remarks of Alderson B. in Regina v. Malings, it is evident much latitude was allowed. The State Trials show the same thing. And in the modern case of Regina v. Frost, for treason, the prisoner was allowed to address the jury after his counsel had done so, but waived his right to do it. There could be no object in such a prac* tice, except to allow him to tell his own story. See 1 Townsend's Mod. St. Tr. p. 71. The case is also reported on the law points in 9 C. & P. 129.
I think the statements contemplated by our statute are such as were allowed in Regina v. Malings and Regina v. Walking, and are~such unsworn statements as the prisoner may choose to make; and that -the design of the law is to secure that as an absolute right which formerly was a matter of discretion, and granted only in special cases, when a prisoner was defended by counsel; but when not so defended, allowed generally. 'By allowing these I think the terms of the statute are fully complied with, and a practice is introduced Whereby, if fairly carried out, the prisoner may often be enabled to clear up false charges and remove doubts against him. And it seems on the
I am therefore in favor of allowing judgment on the verdict.