47 La. Ann. 444 | La. | 1895
Lead Opinion
The defendant was convicted of the crime of having received a bribe within the meaning of the bribery statute of 1890, and prosecutes this appeal from a sentence to five years’ imprisonment at hard labor in the State penitentiary.
The charge of the indictment is that the defendant, being a member of the Oommon Council of the city of New Orleans, and, as such, a municipal officer thereof, on the 7th of November, 1898, feloniously did receive from one Lyman S. Widney the sum of five hundred ■dollars as a bribe, present or reward, for the purpose of influencing him, as such officer, to vote and exercise the power in him vested, ■and t j perform a duty of him required with partiality and favor.
During the progress of the trial quite a number of bills of exception were taken on the part of the defendant, to various rulings of the trial judge, and to which we will give our attention in the order ■of their occurrence and importance.
The first question in importance, and to which the counsel on either side have devoted their arguments chiefly, is that which relates to the admission in evidence of the check and stub of the check in the check book, and the entries made by the book-keeper in the cash book of the Pennsylvania Coal Company, of which Lyman S. Widney was agent.
This question became, in due course of proceedings, the subject of three bills of exception, which are numbered in the transcript, respectively, five (5), six (6) and seven (7) ; all of which are, by the State’s counsel, cumulated and argued in their brief, collectively.
L. S. Widney being on the stand at the instance of the State, and on cross-examination by the defendant’s counsel, the basis having been laid for his impeachment, counsel for the State handed to him the aforesaid check book, and asked him if the item exhibited to him was the stub entry for the cheek of five hundred dollars mentioned in his testimony, as having been drawn for the purpose •of getting the money that was paid to the defendant. To this, ■counsel for the defendant objected, because the offer was of a stub of a cheek book kept by Widney himself, and of which the defendant had no knowledge, and was not a party thereto; and further, because this was not the proper subject matter for re-examination.
This objection having been overruled by the court, and the testimony admitted, the defendant retained the bill of exceptions No. 5.
“ I regarded the check and stub as part of the res gestee. I make a distinction, in this respect, between the check and stub and the entries in the books, as eight days had elapsed from the drawing of the check up to the entry in his books, which was made November 15,” etc.
On the further re-examination of Widney, counsel for the State asked him if he did not direct an entry of the payment of five hundred dollars on the books of the coal company on the 15th of November; and to that question, and the answer proposed, defendant objected that any entry that Widney would make, or cause to be made, on his books was his own act.
To this objection counsel for the State replied, that inasmuch as defendant’s counsel had laid a basis for the contradiction of Widney, it was then competent for the State to corroborate him.
The objection having been overruled and the trial judge having admitted the testimony, the defendant’s counsel retained the bill of exceptions No. 6.
As the ruling of the court is the same on bill of exceptions No. 7, reference to it will be for the present deferred.
Thereupon, counsel for the State offered the entry in the cash book of the coal company in evidence; that is to say, the entry of the 15th of November, 1893, which was referred to by Widney, as having been made under his instructions, viz.: “Check marked in red ink 93, dated November 15. B. D. Wood & Sons, City Council two hundred and fifty dollars, immprovements two hundred and fifty dollars.”
In the course of the interrogation that followed it was disclosed that the writing of the stub of the check was in the hand of Widney, and the entry in the cash book was in the handwriting of the bookkeeper of the coal company, as well as the red marks on the stub.
William Cruzat, book-keeper of the coal company, was called as a witness for the State, and was interrogated with the view and for the purpose of corroborating Widney; and, in the course of his interrogation, answered that the entries in the cash book were made by him under the directions of Widney, as agent of the coal company. Thereupon, counsel for the State offered in evidence the cash book and ledger of the coal company, and the aforesaid entries therein of date November 15, 1893, to which the defendant objected
These objections having been overruled and the testimony submitted, defendant’s counsel retained the bill of exceptions No. 7.
Thereupon counsel for the State proceeded to examine the witness, Cruzat, with reference to said entries, etc.
Frcm bhe testimony of Widney, as well as from the check, stub and check book, it appears that five hundred dollars were withdrawn from bank on the 7th of November, 18S8 — the date laid in the indictment — and paid to the defendant on that date; and that the payment closed the transaction, in so far as the defendant was concerned, and in so far as the commission of the crime of bribery is concerned.
And, from the testimony of Cruzat, the book-keeper of the coal company, as well as from the entries in the cash book and ledger, it appears that he never dealt with the check at all, nor with the stub in the check book, otherwise than as directed by Widney. It further appears that Cruzat was, at the time the check was drawn and the money pa'id to the defendant by Widney, directed not to make any entry thereof in the books of the coal company at all, but to wait a few days; and that on the 15th of November, 1898 — eight days after the payment was made to the defendant, and the transaction closed — he was, by Widney, further directed to make the entry as it occurs on the cash book, and that he made same according to his directions.
Inasmuch as the reasons of the trial judge for overruling the defendant’s objections to the foregoing testimony, and those appended to the aforesaid last two bills of exception, are very succinctly stated we will incorporate them in their entirety, and take the liberty of extracting same from the brief of counsel for the State.
They are as follows, namely:
“And be it further remembered that the foregoing evidence and the testimony of the witness, Lyman S. Widney, a witness for the State, with the objections and exceptions reserved to the ruling of the court, are herein set forth with particularity, and are taken from the stenographer’s notes kept and taken at the time said evidence was given by the said witness.
Per Curiam: “ I make part of this bill the written reasons on file for admitting the evidence, the statements of facts contained therein, the testimony of L. S. Widney and ffm. Cruzat, check-book stub .No. 512 of November 7, check No. 512 for five hundred dollars by .the Pennsylvania Coal Company on the Louisiana National Bank and the entries in the books of the Pennsylvania Coal Company, to which objections have been made and which are the subjects of this bill.
“The entries were not offered for the purpose of corroborating the testimony of an accomplice as to those facts which fix the guilt of an accused by identifying and connecting him with the commission of the crime, but for the purpose of confirming the witness’ narrative of facts, as far as possible, in all of its parts in order to sustain his veracity, which had been assailed in the manner stated in the written reasons filed at the time, and referred to above as made part hereof.
“The evidence was admitted at that time before the prosecution closed, in order to protect the State in case the accused should submit his case without offering any evidence, after having assailed the veracity of the State’s only witness to the most material and essential fact of the case. In such a contingency should the cause go to the jury on the uncorroborated testimony of an accomplice, and the veracity of this witness had been attacked in such a way as to suggest a slight yet reasonable possibility that his statements may be untrue, this might create such a doubt in the minds of the jury as would prevent them from basing a verdict upon such testimony and the cause of the State would be irretrievably crippled. As a matter of fact such a contingency did arise, as the defence submitted their case without offering any evidence whatever on the merits.
“ Before admitting the entries they were examined and found to contain no recital which had even the semblance of a tendency to identify or connect the accused, Callahan, with the receipt of the money. They did tend to confirm Widney’s statements as to the following facts:
“ First, as to the statement that he withdraw the sum of five hundred dollars from the business of the Pennsylvania Coal Company.
“ Second, as to Wood’s interest in the transfer of the privilege and ■ his agreement to pay One-half. See answers to questions Nos. 48, 52, 54, 82, 83, 84, 85, 86, 619, 620, 621.
“Third, that this agreement was carried out; that Mr. Widney advanced the money and Wood was to return one-half, and it was so charged. See questions and answers 63, 64, 65, 351, 352, 364 to 375 inclusive, 499, 461 to 471 inclusive, 499, 82, 83, 85, 86, 649, 620, 621. It did not confirm him as to the manner of payment, nor the identity of the recipient, but merely as to the fact of payment and Wood’s responsibility for one-half.
“ Fourth, as to ali these statements and conclusions, from which were that Wood was his accomplice. See questions and answers Nos. 15, 29, 35 to 56 inclusive; 328 to 333 inclusive, and 503.
“ Fifth, as to the fact that an entry on the book had been made of the transaction; that is, that the five hundred dollars had been accounted for. See questions and answers 86 to 94 inclusive, 588, 590, 591; that the entries were made November 15, as sworn to by him in answer to question 588; that they were made under his instructions to Mr. Cruzat, his book-keeper, as sworn to in answers 588, 590 and 591. See also Oruzat’s testimony, Nos. 87M to 93, inclusive.
“Sixth, as to the fact that he was manager of the Pennsylvania Coal Company, since he had the power to draw funds from their business and to direct the book-keeper what entries to make in relation to them, and under no obligation to reveal the facts and details of the transaction. See answers 2, 3, 5, 87 to 93 inclusive, 146, 147, 149 150, 588, 590, 591, 424. See also Cruzat’s testimony, questions and and answers 7 to 16 inclusive, 38, 39, 42, 45, 46, 47; see also Judge Walker’s statement (of counsel for defendant) in Cruzat’s testimony that all entries were made under instructions and directions of Mr. Widney.
“ Seventh, they tended to confirm his sworn statements as to concealment of the transaction — concealing the details from every one, even his book-keeper. See questions and answers 407 to 430 inclusive, 622 to 628 inclusive. See also Cruzat’s testimony, 7 to 16 inclusive.
“ In conclusion I regarded those entries in the nature of statements'
(Signed) “James C. Moise, Judge."
With regard to the admissibility of the cheek and the stub as constituting part of the res gestee, we are of opinion that the ruling of the trial judge was undoubtedly correct. They were contemporaneous in date with the principal transaction — that is, the payment of the money to the defendant — constitute a part of it and illustrate its character. Hence they were properly admitted in evidence.
But with regard to the admissibility of the entries in the books of the coal company, and the parol testimony of Widney and Cruz at in respect to those entries, quite a difficult question arises, because Widney had directed those entries to be made by Cruzat in the absence and without the knowledge of the defendant eight days after the transacbion'was closed.
This is shown by the statement of the trial judge in his reasons for admitting the testimony, viz.: “Before admitting the entries they were .examined and found to contain no recital which had even the? semblance of a tendency to identify or connect the accused, Callahan, with the receipt of the money.
“ They did tend to confirm Widney’s statements as to the following facts,” etc. »
It is therefore evident that the judge did not consider these entries a part of the res gestee. He did not put his ruling on that ground, for he distinctly states that the testimony was admitted “ for the purpose of confirming the witness’ (Widney) narrative of facts as far as possible in all its parts in order to sustain his veracity, which had been assailed in the manner stated in the written reasons filed at the time and referred to above and made pari hereof." (Our italics.)
He finally states that he “regarded these entries in the nature of statements — written statements made out of court, at a time unsus-picious, in the due course of business, and admissible to show that they involve a condition of things conforming to the witness’ sworn testimony at the trial.”
We further extract from the brief of counsel for the State “the
They are as follows, viz.:
“ REASONS OF COURT FOR ADMITTING BOOKS IN EVIDENCE, ATTACHED TO BILL NO. 6.
“ On August IV, 1894, on the trial of this case, the State sought to introduce in evidence certain entries made upon the books of the witness, L. S. Widney, for the purpose, as announced, of corroborating the testimony of said witness, when such testimony had not yet been assailed. I asked counsel should not such evidence, if admissible, be properly offered in rebuttal. The suggestion involved in this question did not meet with acceptance upon the part of counsel, and he urged his offer, arguing its admissibility. It was contended that the witness was an accomplice of the prisoners and his testimony should be corroborated. It was ruled inadmissible. An accomplice being a competent witness, if credit be given his testimony it would require no confirmation from other evidence. The rule of law in this State is, a jury may convict on the uncorroborated testimony of an accomplice. State vs. Cook, 20 An. 145; State vs. Bayonne, 23 An. 78; State vs. Prudhomme, 25 An. 522; State vs. Crowley, 32 An. 782; State vs. Russell, 33 An. 138; State vs. Mason, 38 An. 476; State vs. Hamilton, 35 An. 1043.
“In Russell’s case, 33 An. 136, our Supreme Court held the following charge to the jury in the Prudhomme case (25 An. 522) to be correct. ‘ The jury may convict on the uncorroborated testimony of an accomplice; they are the judges of his credibility, and the rule requiring the judges to charge the jury that the testimony of any accomplice needs, confirmation is a rule of practice rather than a rule of law.’ And they say further: ‘ The rule requiring corroboration is a rule not of law, but of general and useful practice, the application of which is for the discretion of the judge by whom the ease is tried, and in its application much depends on the nature of the offence and the witness’ complicity.’
“ The rule as to the character of corroborative evidence in the case of accomplices is thus laid down by Russell on Crimes, Vol. Ill, p. 603, ninth edition:
“ ‘ There is a great difference between confirmations as to the circumstances of the felony and those which apply to the individual
“ ‘ The corroboration,’ says the same author, p. 602, ‘ must not only connect the prisoner and the accomplice together, but must be such as to show that the prisoner was engaged in the transaction which forms the subject matter of the charge under investigation.’ And after giving the facts of the case, cited Reg. vs. Farler, MSS. C. G., 8 C. and P. 106 (34 E. C. L. R.), and quotes Lord Abbinger as follows:
“ ‘ Now, in my opinion, that corroboration ought to consist in some circumstance that affects the identity of the party accused. A man who has been guilty of a crime himself will always be able to relate the facts of the case, and if the confirmation be only of the truth of that history without identifying the persons, that is really no corroboration at all. See the many cases cited in illustration in Russ. Or. (9th Ed.), Vol. III, pp. 599 to 611 inclusive.
“Therefore, if such evidence is not confirmatory in its nature it is logically irrelevant, but it has never been considered sufficiently disconnected with- the main issue as to warrant its exclusion on that ground.
“ In the many cases cited, the evidence went to the jury subject to the charge of the court on its effect, but in every instance it was
“Viewing the case at bar in the light of these principles, proof of the fact that an entry had been made in the books of Mr; Widney as to the withdrawal of five hundred dollars from his business on the date stated could not be objectionable, but to admit in evidence the entries themselves so that their recitals would be proof against the prisoner and binding upon and identifying him as the party who received the money, when it was not shown that he was present when the entries were made, or when Mr. Widney directed his book-keeper to make them, or that he was aware that they were made, would be contrary to the elementary principles of evidence.
“It would be competent to prove the withdrawal of funds from a business, or the withdrawal or delivery of goods from a stock of merchandise, or prove any other such facts in the due course of business, by such entries, under certain conditions, but they are not admissible to fix the identity of a person under the circumstances of this case as to his complicity in the crime charged.
“There must have been some evidence as a foundation to connect Callahan with the particular entries sought to be introduced in evidence. This position appears to me to have greater foree when the evidence was offered, not to prove an independent, substantive, relevant fact by a third person in corroboration of the accomplice’s testimony, but to corroborate him by his prior statements in his books when his testimony has not been assailed.
“Since this ruling the witness has been cross-examined and turned over to the State for redirect examination. The prosecution again offers the books in evidence for the purpose of substantiating the witness’ testimony, it having been positively attacked. It is claimed the situation has now materially changed, since a basis has been laid for the introduction of this evidence by the assault upon the witness’ veracity.
“ On the cross-examination there was a very strong effort made to weaken the testimony of the witness by the most searching interrogatories. The examiner announced in open court, in the presence of the jury, that the defence intended to prove that Callahan was not present at Widney’s office, as testified to by the latter. In
He is, therefore, to be impeached and contradicted as to material facts in the case, and particularly as to what had taken place at his office at the time he paid Callahan, and under the circumstances stated. If this testimony in support of the witness Widney were not admitted, the State would be left in a crippled condition without an opportunity of repairing it, should the case be submitted. This was the ground for the ruling in the case of State vs. Fruge, 44 An. 165.
“ An attack having been made upon the veracity of the prosecuting witness, it is competent for the State to sustain his statements by every corroborating fact coincident with the history of the ease as testified to by him. It makes no difference whether or not such eonfirmation have a direct or indirect tendency to implicate the prisoner in the commission of the crime, it is relevant in order to sustain his truth, which has been called in question; to corroborate his narrative of the facts, which it has been sought to break down. I think this case, in principle, strictly parallel with that of Commonwealth vs. Wilson, 1 Gray, 138; State vs. Boyd, 38 An. 374; Greenleaf R. 469; Logansport & P. Grove T. Company vs. Heil, 118 Ind. 136.
“ In a prosecution for rape, if the prosecutrix, having been admitted to testify that she made complaint immediately after the fact, is impeached as to the fact of this complaint, she may be supported by proving she has out of court narrated the facts as testified to by her at the trial. Thompson vs. State, 38 Ind. 39.
“ I think it has been distinctly developed by the defence that fraud is to be attributed to Widney and that he never paid the sum charged to the prisoner at the bar. If fraud or improper conduct be imputed to the witness, the supporting evidence will be admitted. Greenleaf on Evidence (15 Ed.), Vol. 1, pp. 621, 622 (note C), citing Annesley vs. Anglesea, 17 How. St. Tr. 1348.
“ For these reasons I rule the evidence admissible.”
From the foregoing we have it affirmed by the trial judge that these entries were not offered for the purpose of corroborating the testimony of an accomplice as to those facts which fix the guilt of
That this affirmation of the trial judge be fully enforced, we make the following extracts from the brief of counsel for the State.
“The error into which the astute counsel representing this defendant have fallen, grows out of the assumption that the only corroboration of a witness who happens to be an accomplice whien the law will permit, is a corroboration as to those parts of his statement exclusively, which tend to connect the defendant with the crime charged.
“Their constant announcement of the rule was, that unless the testimony offered in corroboration had the tendency to prove some fact connecting the defendant with the crime charged, or to show any participation of the defendant with the accomplice at any stage of the transaction, it should have been scrupulously excluded.
“As written in the record, the history of the case establishes that the very character of testimony which was here objected to had previously been offered on behalf of the prosecution for the avowed purpose of corroborating the accomplice, Widney, and that when thus offered it was unhesitatingly rejected by the court as inadmissible for that purpose because it did not amount to a confirmation of some fact which tended to fix upon the defendant the commission of the crime charged in the indictment.
;¡s :|s s¡! tjt
“It is therefore obvious that the District Judge was in full accord
.“The evidence, however, was offered and admitted at the trial for an entirely different and distinct purpose. It was not introduced with a view to corroborate the testimony of an accomplice as to some material fact in order that the jury might be justified in convicting upon his testimony, but was offered for the purpose of supporting those of his statements which had been impeached by the opposing counsel, who had imputed to him improper motives and a recent fabrication of his account of the transaction by showing prior similar statements made by him before such bias or motive could have influenced his declarations.”
Counsel for the State then formulate the following propositions, and state their authorities thus:
“ Besides these cases there are also others where the supporting testimony is permitted solely because of the nature of the peculiar circumstances which exist. In this latter class of cases the impeached witness is not sustained by general evidence of his good character for truth and veracity, but by proof that at a time not suspicious he made a prior similar statement to the one, the truthfulness of which has been assailed. Therefore it is now laid down as a maxim of the law that where evidence has been offered tending to show bias, improper motive or recent fabrication on the part of a witness calculated to account for the testimony given, then prior similar statements, made before such bias or motive could have actuated the witness, may be given on redirect examination or in rebuttals. Best’s Prin. Ev. 633, note under subhead “Corroborating Statements;” 48 Cal. 85; Thompson vs. State, 38 Ind. 39; Robb vs. Hackley, 23 Wend. 50; Hayes vs. Cheatham, 6 Lea (Tenn.) 1, 10; Stelph vs. Blair, 68 Ill. 241. See also Henderson vs. Jones, 10 S. and R. 322; State vs. George, 8 Ired. (N. C.) L. 324; Dossett vs. Miller, 3 Sneed, 72.”
From the foregoing we have the proposition that the entries in the books, made under the direction of Widney, an accomplice, were inadmissible for the purpose of corroborating his statements of fact fixing the guilt of the defendant; but that when a basis had been
It would seem that a legitimate deduction from that statement would lead to the opposite view. But, if this theory be correct, the distinction that is taken between witness and accomplice would appear to be more seeming than real.
That Widney is • an accomplice of the defendant appears on the face of the indictment; and on the face of the statute under which the indictment was found. See. 1, Act 78 of 1890. That section of the statute is couched in same phraseology as the the 173d article of the Oonstitution.
The trial judge recognized and treated him as an accomplice in his rulings in this case. .
Vide opinion and rulings above quoted.
That we be under no misapprehension with regard to the legal status of an accomplice who is placed upon the witness stand to testify in behalf of the State, let us look into the authorities on the subject, and see how they stand.
In Commonwealth vs. Bosworth, 22 Pickering, 397, the Massachusetts court stated the rule thus:
“ But the source of this evidence is so corrupt that it is always looked upon with suspicion and jealousy, and is deemed unsafe to rely upon without confirmation.”
And in treating of what confirmation is requisite the court said:
“ We think the rule is that the corroborative evidence must relate to some portion of the testimony which is material to the issue. To prove that an accomplice had told the truth in relation to irrelevant and immaterial matters, which were known to everybody, would have no tendency to confirm his testimony involving the guilt of the party on trial.”
And the same rule has been adhered to and followed in the courts of other States. Vide State vs. Walcott. 21 Conn. 272.
The Georgia court states the proposition thus:
“ There is absolutely no evidence corroborating the accomplice, Thurman, in the sense of the law. We decided in the case of Childres vs. State, 52 Georgia, 106, that the corroborating circumstances must be such as connect the prisoner in some way with the crime. * * * That the conviction in the case at bar is based solely on- the testimony of Thurman. There are circumstances going to show he is guilty other than what he states,- but absolutely none that the prisoners are. * * * That (the accomplice) told the same tale when arrested is not only no corroboration by any matter connecting the prisoners with the crime, but it is illegal testimony any way.
“ It is strange to bolster up a witness by proof that he has told the same story before. We know of no authority for such a practice.” Middleton vs. State, 52 Ga. 527.
The Pennsylvania court states the rule thus:
“It is almost the universal opinion that the testimony of an accomplice should be corroborated as to the person of the prisoner against whom he speaks. Some fact should be proved by testimony independent of the accomplice, which, taken by itself, leads to the inference, not only that a crime has been committed but that the prisoner was implicated in it. To prove that the accomplice had told the truth in reference to irrelevant and immaterial matters * * * would have no tendency to confirm his testimony involving the guilt of the party on trial.” Watson vs. Commonwealth, 95 Pa. 424.
The California court pronounced the rule thus:
“ The acts of an accomplice are not evidence against the accused unless they constitute a part of the res gestee, and occur during the pendency of the criminal enterprise, and are in furtherance of its objects.” People vs. Moore, 45 Cal. 19; People vs. Stanley, 47 Cal. 113.
“It is a practice which deserves all the reverence of law, that judges have uniformly told juries that they ought not to pay any respect to the testimony of an accomplice unless the accomplice is corroborated in some material circumstance.
“ Now, in my opinion, the corroboration ought to consist of some circumstance that affects the identity of the accused. A man who has been guilty of a crime, himself, will always be able to relate the facts of the case; and, if the confirmation be only to the truth of that history, without identifying the persons, that is really no corroboration at all.” State vs. Chioyk, 92 Missouri, 395.
The foregoing extracts have been selected as pertinent to the question at issue,"and as illustrative of the consensus of the best judicial opinion on the subject; and we also refer to the following decisions, without quoting from them, as being equally decisive and authoritative: People vs. Elliott, 5 New York, 204; Boyce vs. People, 55 New York, 645 ; Armstrong vs. People, 70 New York, 38; People vs. Plath, 100 New York, 593; Coleman vs. State, 44 Texas, 109; State vs. Thornton, 26 Iowa, 80; Lamkin vs. State, 68 Alabama, 56; Ross vs. State, 74 Alabama, 532.
Nor is this so only of the adjudications of the other States of the Union, but like principles are announced by all text writers, of which we cite the following, viz.: 3 Rice Criminal Evidence, Sec. 325; 1 Greenleaf (14th Ed.), Sec. 381 and note; 1 Phillips Evidence, pp. 30, 38, 112; 2 Russell on Crimes, pp. 396, 956, 967, 968; 2 Starkie Evidence, pp. 11, 12; 1 Roscoe’s Criminal Evidence, pp. 120, 133, 155, 160; 1 Hale’s Pleas for the Crown, p. 305; Wharton Criminal Practice (9th Ed.), Secs. 442, 481, 490.
Mr. Bishop puts the proposition thus tersely: “Nor does the testimony of one accomplice confirm another.” 1 Bishop Crim. Proc., Sec. 1170.
Joy, Lord Chief Baron of the Exchequer of Ireland, says: “ Besides, these circumstances were deposed to by the accomplices themselves, and it is the first time I ever heard that an accomplice can corroborate himself by the circumstances which he swears to.” Joy’s Evidence of Accomplices, 35.
Recognizing these established principles, we held in a recent case that all the decisions and authors concur in the opinion that the tes-
That decision is in strict keeping with prior and subsequent opinions of this court. State vs. Banks, 40 An. 736; State vs. Hamilton, 35 An. 1043; State vs. Russell, 33 An. 136; State vs. Prudhomme, 25 An. 532; State vs. Bayonne, 23 An. 78; State vs. Cook, 20 An. 145.
The trial judge recognized this rule of jurisprudence when he re* jected and disallowed in evidence the entries in the books of the coal company, on the ground that to admit them as binding on the defendant, and identifying him as the party who received the money, when it was not shown that he was present when the entries were made, “would be contrary to the elementary principles of evidence.” But when a basis had been laid for a specific impeachment of Wid-ney’s general character for truthfulness, the judge was of opinion— and so ruled — that the situation was, on that account, materially changed, and the rejected entries had become admissible evidence, “whether or not such confirmation has a direct or indirect tendency to implicate the prisoner in the commission of the crime.”
Entertaining this view he permitted the entries introduced on behalf of the State for the purpose of corroborating Widney’s previous narration of facts and of sustaining his veracity.
If this ruling be correct and must be sustained by this court, it is because an accomplice loses his character as such, and becomes a witness, as soon as a basis is laid for his impeachment.
To thus hold and decide would be equivalent to saying that a person who is unworthy of credit, and whose testimony needs corroboration to entitle it to full faith and credit, is relieved from that disability as soon as further formal assault is made upon his veracity, entitling him to the privileges and immunities of a credible and trustworthy witness.
We have been furnished with neither authority nor precedent for that proposition; nor have we been able, after most industrious examination of adjudicated eases and text-books, to find any precept sustaining it.
The only cases cited by the trial judge as sustaining that view are: State vs. Boyd, 38 An. 374, and Commonwealth vs. Wilson, 1 Gray, 133.
In our opinion neither of those cases have any application to the
In the case of State vs. Banks, 40 An. 736, there was no question of the impeachment of either witness or accomplice. The accomplice had testified that the defendant had told him “where he had procured the axe with which the homicide had been committed; ” and another witness testified, in corroboration of that statement, that the accomplice “ had shown him the place where the homicide had been committed and the spot where the body of the victim had been found.”
The court properly held this testimony admissible for the purpose of corroborating the testimony of an accomplice; but it was admissible for the reason that it tended directly to establish the guilt of the defendant, and because it was the statement of a third person, disconnected with the case.
Even with reference to the admissibility of circumstantial evidence to sustain the veracity of an ordinary witness on the part of the State, the most recent opinion pf this court is adverse to the theory entertained by the trial judge, for in State vs. Guillory, 45 An. 31, the following occurs:
“ The trial judge assigns as his reasons for permitting the testimony to be introduced, first, that it was in corroboration of the testimony of one of the witnesses for the State, who had testified that he saw Ambrose Guillory hand a pistol to the accused when the quarrel began; second, that the testimony of said witness was the subject of an attempt, by the defence, to impeach and contradict him on that point.
“These reasons,” say the court, “ are in our opinion insufficient to justify the radical departure from elementary principles, in permitting hearsay testimony as a part of the affirmative evidence on the part of the prosecution. The judge’s ruling was clearly erroneous, and the accused is entitled to relief.”
In our opinion it is a contradiction in terms to treat of the impeachment of an accomplice, in view of the fact that being an accomplice attaches to his testimony such a degree of suspicion and jealousy that it is deemed unsafe for a jury to rely upon it without confirmation. The very object of impeachment is to discredit a witness; and if the statement of a witness is already discredited, by reason of his being ah accomplice, it would seem to be the work of supererogation to administer additional testimony looking to his impeachment.
And Mr. Thompson in his treatise on trials, in announcing the same principle, says: “ It has been reasoned that when the witness is an accomplice this fact alone is an attach upon his credibility,” etc. 1 Thompson on Trials, Sec. 549, p. 466.
To the same effect is State vs. Twitty, 2 Hawks (N. C.), 449, and other cases in that court. And, inasmuch as testimony corroborative of the testimony of an accomplice must tend to establish the guilt of the accused, it would seem to be incompatible with both the reason and spirit of the rule to permit the introduction of any other character or species of testimony to sustain his general character for truthfulness, because of an effort to further impeach his credibility.
The whole question seems to be completely covered by the opinion in the Massachusetts court, in Commonwealth vs. Bosworth, 22 Pickering, 397.
In that ease the testimony of an accomplice was the sole reliance of the prosecution. The District Attorney sought to corroborate his testimony by that of other witnesses, and this was permitted over objection of defendant’s counsel.
“ For the purpose of impeaching the testimony of the accomplice,” says the report, u the defendant introduced a letter from him,” the accomplice, “ to the defendant, in which he admitted that his testimony in relation to this case, on a former occasion, was false * * *
“ The District Attorney, in order to corroborate the testimony of the accomplice for the purpose of supporting his general credit, then called sheriff and jailer to prove that the situation of the rooms and the arrangement of the prisoners therein corresponded with the account given by the accomplice. To the admission of this evidence the defendant objected, but the court overruled the objection and admitted the evidence.”
So that it is apparent that that case presents the identical question that confronts us in the instant case.
“We can not perceive how the circumstance that the witness told the truth about these public and common objects, concerning which he knew that proof was at hand, has any tendency to confirm the material parts of his testimony involving the guilt of the defendant.”
That opinion is perfectly conclusive and irresistible, to the effect ■that the testimony of an accomplice, whose veracity has been specially impeached, can not be sustained by any species "of testimony that has no tendency to confirm the material parts of his evidence involving the guilt of the defendant.
Nearly fifty years after that opinion was announced, it was again examined and affirmed by the same court in Commonwealth vs. Holmes, 127 Mass. 424, Mr. Justice Gray being the organ of the court. The courL style the Bosworth case as “ the leading case in this court on the subject; ” and, making a lengthy quotation therefrom,they affirm it on both propositions. Since that time the doctrine of the Bosworth case has stood unquestioned, and has been cited as authoritative by all subsequent text writers.-
In our opinion the principle on which the doctrine is founded is correct and fundamental, and, accepting same as correct, our conclusion is that the learned judge of the trial court improperly permitted the introduction in evidence of the entries in the books of the Fennsylvania Coal Company over the defendant’s objection, and that thus admitting same was reversible error.
Having reached-this conclusion, it becomes our duty to dispose of the defendant’s motion in arrest of judgment, which, in substance, presents the same question as that which was made the subject of discussion by counsel for the defendant, and figures in one of defendant’s bills of exceptions — the bill of exceptions which covers the ruling of the court on this question being No. 19.
The motion in arrest of judgment is couched in these words:
“ Sixth. Because the indictment fails to charge that the defend
As stating the construction of the statute most favorable to the defendant, we have selected and appended hereto the paraphrase of Sec. 1 of Act No. 78 of 1890, which is drawn in question, by the motion in arrest, which is as follows, viz.:
“ Any person who shall directly or indirectly offer or give any sum of money, bribe, present or reward * * * to any officer, State, parochial or municipal, * * * or to any member or officer of the General Assembly * * * with intent to induce such officer or member of the General Assembly * * * to perform any duty of him required with partiality or favor * * * the person giving or offering to give * * * and the officer or member of the General Assembly so receiving * * * any money, bribe, present or reward * * * with the intent, or for the purpose of consideration aforesaid, shall be guilty of bribery.”
It is quite true that the present indictment is founded upon the latter denunciation of the statute, namely, “ the officer or member of the General Assembly so receiving * * * any money,” etc., yet it is distinctly and immediately connected with the former denunciation of the same section of the statute.
“The words cso receiving’ evidently relate back to the words of the section first quoted with regard to the person who ‘ shall give any sum of money, bribe, present or reward,’ etc.; and, examining the words that intervene, we find the enumeration of these two denunciations to be ‘ any officer, State, parochial or municipal, * * * or any member or officer of the General Assembly.’ ”
We are of opinion that the words “ officer or member of the General Assembly” must be taken to refer to all persons enumerated in the foregoing portion of the act — that is to say, the State, parish and municipal officer, or member of the General Assembly; and this view is enforced by the fact that both denunciations are contained in one single sentence.
The motion in arrest of judgment is not good.
It is - therefore ordered and decreed that the verdict of the jury and the judgment and sentence thereon based, be annulled and reversed; and it is further ordered and decreed that .the cause be remanded to the lower court for a new trial according to law and the views herein expressed.
Concurrence Opinion
The entries made in the books of the Pennsylvania Coal Company,, by the direction of the witness Widney, out of the presence of the accused, and some seven days after the commission of the crime, were not admissible evidence to prove the guilt of the accused. The entries in the books were distinct collateral facts irrelevant to the issue.
This is admitted in the trial judge’s statement.
Conceding, therefore, that the witness was not an accomplice, but. a disinterested witness, under the pretence of corroborating his testimony no fact could be stated by him that was not admissible evidence against the accused.
The credit of a witness may be impeached by proof that he has< made statements out of court contrary to what he has testified at the trial. But it is only on such matters as are relevant to the issue that the witness can be contradicted. Therefore a witness can not be examined as to any distinct collateral fact irrelevant to the issue. 1 Wharton Criminal Law, par. 817.
Proof of declarations made by a witness out of court in corroboration of testimony given by him on the trial is, as a universal rule, inadmissible, and a fortiori, a witness can not be allowed-to corroborate his own testimony by saying that he made the same statements, previously to others. So, too, where it is proved that a witness has. at other times made statements different from his testimony, the party offering him can not be allowed-to support his testimony by proving statements at other times corroborative of such.testimony.
The witness had sworn that he had paid five hundred dollars to the defendant to bribe him. Seven days after this he caused to be made certain entries in the books of the company of which he was the agent for the purpose of bribing defendant, placing the five hundred dollars to the account of the city. It is incomprehensible how such testimony as to this fact of the entry could be allowed in evidence to corroborate the witness’ statement to the bribery of defendant by paying him cash, five hundred dollars.
If the witness had voluntarily sworn falsely to matters not within the issue he could have been contradicted as to those matters. 1 Wharton Criminal Law, par. 818.
But it is not pretended in this case that the witness in the examina
The greatest latitude in impeaching a witness by proof of his having previously made statements inconsistent with his testimony has gone no further than to allow proof of other statements made by him in accordance with his testimony on the'trial. 4 Blackf. 295; 6 Blackf. 300.
The witness in such a case must be first impeached, and there was ■no impeachment of the witness’ testimony on any fact that would justify the admission of the evidence as being in accordance with his .testimony on the trial.
According to the statement of the trial judge the contradiction of witness’ testimony was to impeach the whole of it “ by the most searching interrogatories.” Hence the trial judge’s statement is that the veracity of the witness had been attacked, and the testimony was admitted to sustain his veracity. If so the only way of ¡sustaining it was by proof affecting his character for truth and •veracity, and the examination must be confined to the witness’ gen■eral reputation for truth and veracity. Wharton Criminal Law, par, 814.
But the whole controversy in this case is narrowed to this: Can •evidence which is inadmissible against defendant to establish his guilt ■be permitted to go to the jury on the preten.ee of sustaining the testimony of a witness? The answer must be in the negative, otherwise -no rule for the rejection of inadmissible evidence could be invoked •to exclude it from the consideration of the jury.
The trial judge states that the entries contained no recital which had ■even the semblance of a tendency to identify or connect the accused with ■the receipt of the money.
He further states that the defendant attempted to prove an alibi ¡'by weakening the testimony of the witness by the most searching ¡interrogatories, and thus question the truth of every fact sworn to ¡by the witness.
This statement alone shows the utter irrelevancy of the testimony ¡to the issues in the case, and the necessity for applying the rules of (evidence referred to herein.
I concur in the decree for the reasons stated in this opinion.
Concurrence Opinion
One proposition presented by this appeal impressed one at the time of the oral argument as of importance greater than ■that of any other question discussed. The conviction was on testimony in part derived from book entries, admissible, it was claimed, to confirm a witness who had testified to the guilt of the accused. The offence, according to the testimony, had been committed on the '7th, and the entries, directed by the witness, made on the 15th No-wember. The entries carried no significance whatever touching the accused. They were debits in the books of money paid for apparently legitimate purposes. Their tendency' to corroborate the witness who had criminated the accused was not readily appreciable if •corroboration implies anything confirmatory of the testimony of the witness in respect to the material issue, the guilt of the party •charged by the accusing witness and convicted on his testimony. IE not admissible as corroborating the witness on the issues, for which purpose only, in my appreciation, the entries were offered, then the .conclusion seems inevitable, the conviction was on illegal evidence -carrying the necessary result in criminal cases. It would be, as it •impressed my mind, difficult to sustain a verdict on testimony brought forward to serve one purpose for which it was not competent, but none the less contributed to obtain a verdict from the jury against the accused. If the evidence was not admissible as corroboration in .any legal sense, then the conviction had been secured on these entries not made by the accused, nor to which he was in any way a party, but by the witness, and by his direction, placed in the books seven days after the offence is stated to have been completed, and .all connections of the accused with the accomplice had ceased.
It could hardly be claimed, nor is it appreciated to be urged, that these entries could be deemed part of the res gestas. Acts and conduct accompanying the particular fact under investigation are considered as illustrating its character. Such acts and conduct arise out of the event, admit of no premeditation and carry the sanctity due to them as concomitants of the event itself. There were, as is gathered from the bills, two interviews, perhaps more, of tbe accused with the witness. The last was begun and ended on the 7th November with tbe bribe then, as the witness testifies; given by him .to the accused. It was seven days after the witness gave to his
The State contended for the admissibility of these entries as tending to confirm the witness. He had testified to bribing the accused on the 7th November. It is claimed and conceded in the argument that'the defence had afterward assailed the character of the witness for truth by attributing to him a design to misrepresent, and had avowed the purpose to discredit him. The entries offered on the direct examination had been excluded, but with the basis claimed to have been afterwards furnished they were again offered and received over the objection of the defence. It was an attempt to sustain the statements of the accomplice as a witness by his book entries. The rule relied on by the State is, that when the character of a witness is- assailed on cross-examination the party calling him may support the testimony by proof of statements by the witness on other occasions. Greenleaf thus states it: Statements by the witness similar to what he has testified in the cause are not admissible, unless a design to misrepresent is charged on the witness in consequence of his relation to the party or to the cause, in which case it seems it may be proper to show he made a similar statement before that relation existed. 1 Greenleaf, Sec. 469. The rule varied in form is again stated thus: “Prior similar statements may be given in evidence made before any improper motive could have actuated the witness; in general, however, prior consistent statements can not be admitted.” Best’s Principles of Evidence (Ed. 1883), 633, notes. The other text writers and a long array of adjudications state the rule substantially the same. Admissibility of such statements is the exception ; prohibition is the rule. The guarded terms in which the rule is couched announce the limitations as to the time and the relations of the witness subsisting when the statement is made. These entries were made seven days after the bribe was given. It is not understood that the argument for the defence against the admissibility of the evidence is based on the specific ground of the time of the entries, but controverts its admissibility on any grounds.
The circumstances under which the State claims the admissibility of the entries are these: The witness had testified to bribing the accused on the 7th of November by giving him five hundred dollars. The defence had afterward assailed the witness’ character, and with
The act under which the defendant is indicted makes the giver as well as the receiver of the bribe participants in the offence. We must deal with the witness as in the position the law puts him. It is settled the jury may convict on the testimony of an accomplice. Where, however, the State, unwilling to rest on his testimony, seeks to confirm it, in my view an important rule of evidence, different from that relied on by the State, is called into operation. In the argument for the State this is called a rule of practice. However called, it is founded on experience of this species of testimony and requires, if such corroboration is attempted, it shall be something more than testimony as to the acts or conduct of the accomplice to be supported. The confirmatory proof must relate to the guilt of the accused. The accomplice has already testified to his own conduct. To be confirmed, reason would suggest that the corroboration must refer to the guilt of the accused. Corroboration of the acts of the accomplice is not in any sense corroboration of the crime of the party charged. Mr. Greenleaf states there is some disagreement as to the nature and extent of the corroboration required, some have deemed it sufficient if the accomplice is confirmed in any material part of the case; others have required evidence of the corpus delicti only, and yet others who thought it essential there should be corroborating proof that the prisoner participated in the offence, and when several are tried the confirmation is required as to all; the confirmation of the witness, the text adds, is no confirmation at all, as it respects the prisoner. It is manifest the proof offered here solely as corroboratory testimony meets no test prescribed by Greenleaf. He cites approvingly the rule of the Supreme Court of Massachusetts, that the confirmatory testimony must relate to a material part of the case. The decisions of that court have always been of high repute. The earlier decision was given when its Chief Justice was a great jurist and the associates stood high in the appreciation of bench
These decisions carry not only their intrinsic force, but have been adopted as the expositions of the law by Greenleaf, the leading text-book on this branch of the law, as well as by the later writers. Rice on Evidence. The Massachusetts case puts the question : what is eorroberation, and answers it. It must relate to the guilt of the accused. To prove the accomplice has told the truth as to irrelevant and immaterial matters known to everybody would have no tendency to confirm his testimony involving the guilt of the party on trial. If this were the case every witness could always furnish materials for the corroboration of his own testimony. If he could state “ where he was born,” and the decision goes on to enumerate other unimportant points, he might easily get confirmation of all these particulars. But these circumstances having no necessary connection with the guilt of the accused, proof of the correctness of the statements in respect to them would not conduce to prove the statement of the guilt of the defendant. There is no substantial difference developed by the authorities on the principle so well stated by the Massachusetts court. The decision in the first case was years ago, and in the later decision, Justice Gray being the organ, the rule as to the corroborative testimony of an accomplice was affirmed in the strongest language, as laid down in the earlier case. The adjudications of other courts, notably of Pennsylvania and Georgia, are to the same effect. In the last case of the Massachusetts court the prisoner, indicted for arson, was convicted on the testimony of an accomplice. He was confirmed in various particulars of his conduct to which he had testified on the stand. Thus he had testified that on the night of the crime he had walked around town, gone to a lecture, met with companions, leaving them, had approached the barn, and saw the accused with burning straw in hi.s hands who admitted he had fired the barn; that he then went away, reached his father’s home about midnight and went to bed. The witness further testified that later the accused gave him some bank bills as he had promised. The accomplice was confirmed by the testimony of others on all the points of his testimony, except as to the material issue, the guilt of the prisoner — that to say, by other testimony he was confirmed in his statements as
The sequence of the introduction of improper evidence against the accused is apparent. The testimony offered to corroborate proving nothing in respect to the guilt of the accused, advances in no respect the solution of the issue of guilt. Under the guise of corroboration it serves to put before the jury incompetent evidence to affect the prisoner. That effect was the precise question determined in the Massachusetts cases, thus stated in the clearest language by the learned judge in the last case. Determining that no evidence can be admitted as competent for corroboration that does not tend to prove the guilt of the accused, the result is as he states it, that if any evidence is admitted by way of corroborating the accomplice, so as to make it safe for the jury to convict, which is not legally entitled to that effect, it is a subject of exception and a
The admission of illegal evidence in a civil case is comparatively unimportant. The judge disregards the incompetent evidence, and the judgment is based on that which is legal. But in a criminal case the judge has no such function. It is for the jury to convict, and is presumed to act on all the evidence submitted. It is impossible to determine what influence has been exerted on their .minds by illegal evidence, and it is the right of the accused to be tried on legal evidence alone. If that right has been invaded there has not been the fair trial guaranteed to all by the Oonstitution and laws. Hence this court is powerless to accept any suggestion, even if it were made, that without the improper evidence there was enough to convict. To this effect is the uniform current of all authority well epitomized thus: The admission of illegal evidence can. not be disregarded on the ground that the other evidence in the cause was sufficient to convict. The conviction must be by legal evidence only. And again thus: The court can not look into the whole case to determine whether or not there is other testimony sufficient to establish the defendants guilt. To do so would be, in effect, to set aside the verdict of the jury, and to form conclusions for ourselves from the evidence. The defendant is entitled to the verdict of a jury upon competent testimony alone.
The rules of evidence are for all time and for all men. They tend to secure the conviction and punishment of the guilty. They have the no less important function of guarding the rights of the innocent who may be accused of crime. It is bad if the guilty sometimes escape. It would be worse if criminal trials were conducted without regard to those rules the wisdom of the law has provided for the guidance of courts.
The new trial being inevitable, it is proper to state that, in my opinion, the act of 1890 is applicable to the offence charged. The accused can be tried again on that indictment, and this opinion simply indicates the illegal evidence to be excluded.
I concur in the decree.
Dissenting Opinion
REGARDING THE INTERRUPTION OF COUNSEL.
The trial court certifies that it had decided that Act ISTo. 78 of 1890 applied if the defendant was guilty of having received a bribe.
The court’s statement in the bill of exceptions is sustained by the record.
An indictment against the defendant for the offence charged had been quashed on the ground that the act of 1890 applied. In the case at bar a demurrer on the ground that the defendant was not bound to answer had been filed and overruled.
The court had in these proceedings laid down its interpretation of the act in question.
The opinion of counsel regarding the law differed from the ruling of the court. One of the counsel, addressing the jury, read Art. 168 of the Constitution; and continuing his argument referred to the act of 1890, and stated to the jury that as to the receiver of a bribe, the statute is plain, that the only persons contemplated, were the officers and members of. the General Assembly, and counsel was interrupted at this point by the court, and was informed that, if he intended to question the applicability of the statute, he would not be permitted.
We have seen that the court had previously ruled.
If the trial court is subjected to a review of its ruling before the jury, and to an appeal to them for their reversal of the ruling by their verdict, it will be subversive of the respect due to that tribunal.
The jury should have confidence in the ability of the trial judge to properly interpret the law, and the judge should feel confident of the desire of the jury to discharge their duty. That confidence will be shaken if an appeal be allowed from the court to the jury. We have found no decision favorable to such an appeal (either English or American), to which attention has been called.
The case of the Dean of St. Asoph, made illustrious by the address of Erskine, the greatest advocate and forensic orator of his age, is cited by defendant’s counsel.
The position of the defence has no support in this case, as will appear by a brief review.
The dean, one of a great, many respectable gentlemen, im
The dean was brought to trial as one of the principal offenders. In defending him, Erskine argued against the restraint placed on the jury by the court.
The juries, at the time, in all cases of alleged libel and treason, were confined to a finding of the fact of publication as charged.
They were not permitted to determine whether it was or not a libel or sedition.
Erskine contended that it was a question of libel or no libel, sedition or no sedition, and not a question exclusively of publication, and that the jury should exercise jurisdiction over the whole charge. His address paved the way for greater rights to juries in the administration of criminal justice.
He, with great clearness, admits that an accused can not claim before the jury the protection of a deficient indictment. But he claimed that the jury should exercise jurisdiction over the whole charge in finding a verdict.
The Constitution of 1879, of this State, has applied the principle for which he contended by ordaining that the jury shall be the judges of the law and the facts after the charge, and not of questions of law arising during the trial and necessarily decided before Che case goes to the jury.
A text writer, referred to by defendant’s counsel in this case, said that at the time of the foundation of the English colonies in this country there was a very strong feeling against arbitrary power, as the colonies had painful recollections of the abuse of judicial power in the mother country, and therefore it was natural that they should seek to enlarge the power of the jury and diminish that of the judge. Hence the doctrine that the jury could take away the law into their hands without regard to the judge’s charge, popular before and at the time of the revolution.
Even if the preponderance of judicial authority was not, in this country, as it is, in favor of the doctrine that the jury should take the law
What useful purpose would be served in thus remanding the case as applied for? Sur.ely not to enable the jury to reach a different conclusion'in regard to the act of 1890 relative to bribes.
The facts which form the basis of the third and fourth bills of exceptions are:
That to the witness, Widney, the District Attorney propounded questions as to who furnished the amount of the alleged bribe.
The objection was that the evidence was not admissible for the reason that conversations between third persons tending to implicate the defendant, but nob had in his presence, is irrelevant.
There were three parties to the agreement regarding the alleged bribe — Widney, Wood and Callahan.
In compliance with the agreement entered into by these parties, in person, the witness testifies he paid the amount. Wood was not a third person to the agreement. He and Widney had interviews with the defendant, and acted concurrently in the matter of securing a privilege from the council through the defendant.
Moreover, the judge certifies that the fact sought to be elicited by the question objected to had gone to the jury when the objection was made in answer to questions previously propounded.
The admissibility of testimony can not be determined if the complaint is first made when the statement of a witness'is reiterated. State vs. Holmes, 40 An. 170: State vs. Donelon, 45 An. 755.
PART OP THE RES GESTiE.
Question also arose regarding the admissibility of the “ stub ” to identify the cheek, cash book and ledger.
With reference to the first, the trial judge certifies that over the objections of counsel for defendant he ruled that the stub of a check drawn to bearer for five hundred dollars, and dated November 7, 1898, with pencil mark “ ent. 15 ” written across, was admissible as part .of the res gestas; to the ruling, counsel for the defendant excepted.
The following is from Thompson on Trials, 466, and has some bearing: “And where an accomplice testifies that he had paid a bribe to the defendant (on trial for bribery) by giving to the defendant a cheek upon a certain bank, payable to cash or bearer, which had afterward been returned by said bank to the witness, it was competent for the Stats, in corroboration, to show by the books and business memoranda of the bank a credit to the defendant for a like amount; deposited by check two days after the alleged bribery.”
STUB AND ENTRY IN BOOK ARE CLOSELY RELATED.
This evidence being admissible, and the stub admitted being identified on its face with the entries in the books, to which the most serious objections are made, it does not seem that entries thus identified are inadmissible, as they are part of one act; that the law supporting the admissibility of the stub goes far toward justifying the admissibility of the entries in the cash book and ledger. They are intimately connected, and among business men the existence of cheek and stub suggest proper entry in cash book and ledger.
In the lower court a distinction was made between -the check and stub and the entries in the books. The latter, the entries, were finally admitted.
The prosecuting officers state that the entries in the 'books of the Pennsylvania Ooal Company were not offered for the purpose of corroborating the testimony of an accomplice as to those facts which fix the guilt of the accused, but for the purpose of sustaining his veracity.
On the part of the defence it is urged that the evidence was admitted to corroborate an accomplice. The court certifies that the evidence was not admitted for the purpose of corroborating the testimony of an accomplice, as contended by the defendant; that on the cross-examination of the witness, Widney, there was an attack made upon his veracity, and that the defendant had laid the foundation for impeaching his testimony, by propounding questions to that end; that without the testimony the State would have been left in a
In People vs. Vane, 12 Wendell, 79, it was decided that the rule applies to an accomplice: “The witness shows on his direct examination that he was an accomplice; his testimony is therefore suspicious; it comes from a tainted source and may well be doubted. In such a case it seems to me the principle applies, that a witness who is impeached may be supported. * * * The rule is laid down by Macauley, that what a witness has been heard to say at another time may be given in evidence either to invalidate or confirm the testimony which he gives in court.”
In Commonwealth vs. Scott, 123 Mass. 222-238, referring to Commonwealth vs. Bosworth, 22 Pick. 397, it is said: “In that case (Bosworth), that the evidence in corroboration of the accomplice was admissible.” See also State of Kansas vs. Emma Hendricks, 32 Kansas, 559-563.
From Bishop C. P. 1170 we quote: “Not inconsistently with these views it is permissible also to submit to the consideration of the jury evidence tending to show the accomplice’s probable credibility, in his narrative, though coming short of the required confirmation.”
That rule is approvingly referred to in State vs. Banks et al., 40 An. 739, in deciding a point similar in some respects. The evidence was not admissibile for the purpose of corroborating the testimony of an accomplice.
It was admissible to prove the fact, the entry in the employer’s books, in regard to which he was impeached on cross-examination.
At the time the entries were made it was not self-serving, but it was the reverse, self-harming, evidence of an agreement reprobated and denounced by law. The State attempted to sustain his testimony, assailed, by offering book entries to establish that he had
Rapalje, in his treatise on the “Law of Witnesses,” p. 252, under the head, “Cross examination of Accomplices,” explains that the chapter regarding witnesses applies equally to accomplices, except “ that the latitude of cross-examination is especially extended where the witness is an accomplice, in allowing questions having a. tendency to shake his credit by injuring his character or to prove his accuracy or veracity; and in such matters much is left to the enlightened discretion of the court trying the cause, and its action will not be reversed; unless such discretion appear to have been abused;” and when this cross-examination “ tends to create a distrust of his integrity, fidelity or truth, it was held competent for the adverse party to ask the witness an explanation which might show the consistency of such facts with his integrity, fidelity and truth, although circumstances might thus be proved which were foreign to the principal issue, and which, but for such previous examination, would not have been permitted to be proved.”
No one denies that the object of the law of evidence is the discovery of truth under systematic methods.
It should also be conceded, for it is the law, that a witness may be sustained, whether impeached on cross-examination or by examining other witnesses in rebuttal.
This being the rule, let us assume, for illustration, that the amount was $10,000 instead of $500, and that the defence had produced evidence in rebuttal in proof of the utter impossibility of the witness having given that amount for reasons stated by the impeaching witnesses.
Evidence, under the circumstances, is admissible only to sustain the witness in the statement that the employer’s cash furnished the amount, as shown by stub, cash book and ledger, if there is not the least ground to suspect that the evidence is untrue; and admissible only to establish that the witness, did not state an untruth when he swore that he had the amount. As to whether he gave it or not as a bribe is another matter. It does seem that these instruments of evidence are admissible exclusively to prove that that sum was from the business of the employer, although charged as in this case.
THE ALLEGED REFERENCE TO DEFENDANT.
It is error if the court permit counsel, against defendant’s objection, in addressing the jury, to comment on the omission of the defendant to testify as a fact for consideration in determining the ease.
The facts which form the basis of the bill of exceptions to the court’s ruling refusing to treat the whole case as a nullity, because of a remark of the Assistant District Attorney, are that, in addressing the jury, he said: “Who has denied that the defendant has received five hundred dollars? The accused has not denied it. I have not heard him deny it. ’ ’
To which counsel for the defendant called attention of the court, and instructed the jury that they must disregard the remarks of the Assistant District Attorney.
That prosecuting officer then continued his address to the jury, saying, in substance: “ I meant that there was no testimony in the case to prove that Callahan denied accepting or getting the money, and there has been no scintilla of evidence contradicting the statement of Wood and Widney, and that he meant no personal allusion to Callahan.”
The jury were also instructed in the general charge that they were not to construe anything unfavorable to the accused by reason of the fact that he had not testified.
If, despite the explanation and withdrawal of the remarks by the District Attorney, there lurked the least presumption in the minds of the jurors, it must have been removed by the instruction of the court.
The allusion and the correction brought out prominently that no inference was to be drawn against the accused from his omission to testify. It was, at most, a hasty utterance immediately corrected by cautioning the jury against giving it the least importance.
“The judge is not required to treat the whole case as a nullity because of such remarks.” Com. vs. Worcester, 144 Mass. 58, 57; Wharton, Criminal Ev. (9th Ed.) 435; Rapalje, Law of Witnesses, 252.
Lastly, the defendant requested the trial judge to instruct the jury that, if it was the duty of the accused to favor and vote for the ordinance of the council in question, and if he did favor and vote for it, without partiality and favor, as a matter of law the accused was not guilty. The court gave the charge requested, and added (to which addition the defendant objected) : “But I charge you further, that if he voted for it and favored it by reason of the fact that he was paid for it, he would have acted with partiality or favor, and if you should so find beyond a reasonable doubt, he would be guilty.”
The theory of the defence was, if the accused received the amount he was guilty of extortion in office, and not of receiving a bribe.
Requiring an amount for a vote is the crime denounced.
When the statute of 1890 was adopted there were statutes in the books denouncing extortion in office.
Nevertheless, the law-makers created a new offence and provided ■ more severe penalties. It is not within the authority of the courts to restrict or change the legislative intent as expressed in the text. The office is honorary, without emolument of any kind. If he accepted an amount which influenced him to vote with partiality or favor, the offence was within the meaning of the statute.
The Chief Justice concurs in this dissent.
Rehearing refused.
