EVIDENCE OF ACCOMPLICES.

T has been observed in many of the celebrated

I criminal trials that have taken place in this

country during the last few years, that the testimony of an accomplice has played an important part, and some of the most hardened criminals charged with high crimes could not have been convicted but for such testimony. But we cannot say that all convictions by the aid of such testimony are just, or that by its assistance the innocent may not sometimes suffer. Yet it is thought the stern necessities of good government demand the policy in the administration of Criminal Law, for without such testimony it is sometimes impossible to detect many crimes the most detrimental to society, and therefore the evidence of accomplices has at all times been admitted either from a principle of public policy, or from judicial necessity, or from both. They are no doubt requisite as witnesses in particular cases; but it has been well observed that in a regular system of administrative justice they are liable to great objections. "The law," says one of the ablest and most useful modern writers (Chitty) upon criminal jurisprudence, "confesses its weakness by calling in the assistance of those by whom it has been broken. It offers a premium to treachery and destroys the last virtue which clings to the degraded transgressor. On the other hand it tends to prevent any extensive agreement among atrocious criminals, makes them perpetually suspicious of each other, and prevents the hopelessness of mercy from rendering them desperate." People v. Whipple, 9 Cowen, 709.

Who are accomplices: The definition of the term "accomplice" in legal phraseology has not been the

same in different cases.

In Lindsey v. People, 63 N. Y. 143, an accomplice is defined as one of many equally concerned, or a copartner in the commission of a crime. The term includes all the particeps criminis whether considered in strict legal phraseology as principals or accessories." Bishop gives the following definition: “A person to be technically an accomplice must, it appears, sustain a relation to the criminal act that he could be indicted jointly with the others for the offense." 1 Bishop on Cr. Pro., 1084; Drum v. People, 29 N. Y. 523–527. To constitute an accomplice, the person charged as such must have an intention of committing the crime, mere apparent concurrence is not enough. United States v. Henry, 4 Wash. C. C. Rep. 428. One who purchases intoxicating liquor sold contrary to law, for the purpose of prosecuting the seller for an unlawful sale, is not an accomplice. Commonwealth v. Downing, 4 Gray, 29. A detective who acts without any felonious intent but solely with the view of discovering the

perpetrators of the crime is not an accomplice. State v. McKean, 36 Iowa, 343. So likewise a person who has no knowledge of a larceny until after its commission, and who buys the stolen goods by direction of an officer with funds supplied by an officer in order to detect the thief, is not an accomplice whose testimony needs corroboration. People v. Barrie, 49 Cal. 342.

In Alabama a partner of one of the players in his winnings or losses in the game in which the defendant played and who advanced money to the defendant, which was used by him in betting on the game, is an accomplice within the Statute (Code, § 3600) which forbids a conviction on the uncorroborated testimony of an accomplice. English v. State, 35 Ala. 428.

A bystander does not become an accomplice by mere approval of a murder committed in his presence, and the charging of the jury that if the defendant was "present aiding, or abetting, or counseling, or inciting, or encouraging, or approving" the act; he was an accomplice is an error, and the court must reverse and order a new trial. State v. Cox, 65 Mo. It is for the jury to determine whether or not a witness jointly indicted with the defendant is an accomplice. State v. Schlagel, 19 Iowa, 169.

The practice now adopted in England is for the magistrate before whom the accomplice is examined, or the court before which the trial is had, to direct that he shall be examined, upon an understanding that if he gives his evidence in an unexceptionable manner, he shall be recommended for a pardon. Roscoe's Cr. Ev. 124. In Scotland the course pursued with regard to an accomplice who has been admitted against his confederate, differs from that adopted by the English law, and seems better calculated to further the ends of justice. There by the very act of calling the accomplice and putting him on the witness stand the prosecutor debars himself from all right to molest him for the future with relation to the offense charged.

"This privilege is absolute and altogether independent of the prevarication or unwillingness with which the witness may give his testimony. Justice, indeed, may often be defeated by a witness retracting his previous disclosures, or refusing to make any confession after he is on the witness stand; but it would be much more put in hazard if the witness was sensible that his future safety depended on the extent to which he spoke out against his associates at the bar." Alison's Prac. Cr. Law of Scot. 453. But in the United States an accomplice, by turning informer and testifying for the prosecution, acts under the implied condition that he earns an exemption from punishment by declaring the whole truth; but how are we always to know he tells the

If testifying to an untruth would, in the opinion of the accomplice, be more likely to bring him exemption from punishment — which is generally the question of greatest importance with persons of such character would it not be a most powerful incentive for him to do so? But is he not more likely to tell the truth than otherwise, even though he is conscious there is no evidence to corroborate him? These are speculative questions, but under the caution exercised by a prudent court, in its instructions to the jury, no great harm need be feared. Still, we believe that if, after having made his confession to the prosecuting attorney, he should be sworn on behalf of the prosecution, with the full understanding that in any event he could never be punished for the offense charged, it would be much the safer rule.

In England the court usually considers not only whether the prisoners can be convicted without the evidence of the accomplice, but also whether they can be convicted with his evidence. If therefore there be sufficient evidence to convict without his testimony the court will refuse to allow him to be admitted as a witness. Roscoe's Cr. Ev. 120. Accomplices may in all cases by permission of the court be used by the government as witnesses in bringing their associates to punishment. Lindsay v. People, 63 N. Y. 143. And although it is in the discretion of the court to admit or refuse, yet in practice this matter is left almost entirely to the discretion of the prosecuting attorney. This at least is the practice in the State of New York, and the court is not likely to interfere except in a case where under all the surrounding circumstances it seems to be necessary, as in the case of People v. Whipple, 9 Cowen, 708 (1827). In that case the district attorney moved the court that Jesse Strang, who had just been convicted by the verdict of a jury, as a principal, in the murder of which Mrs. Whipple stood charged as accessory before the fact, should be brought up and examined as a witness on the part of the prosecution. This was objected to by the prisoner's counsel, and the court, in a very elaborate opinion discussing the circumstances fully, denied the motion. The main ground for the denial of the motion seems to have been that Strang was the greater criminal of the two, even conceding Mrs. Whipple to be guilty of the charge brought against her, and that by allowing him to testify there would be an implied condition of recommendation of pardon if he told the truth. The court propounded the following significant question: "Why then should we select her for punishment in preference to him?" So in a later case where it was sought to make an accomplice a witness for the government upon an implied promise of pardon, the court held that it

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pleasure of the public prosecutor. An accomplice under an indictment for another offense, as a general rule, will not be admitted as a witness when such fact is known to the court, although he testify in good faith against his accomplice on the trial upon one indictment, he may be tried upon the other, and upon conviction punished. It would be a fraud upon the court and an obstruction of public justice if the public prosecutor should enter into an agreement unsanctioned by the court (if such sanction could be given in such a case) offering immunity or clemency to several defendants in several indictments upon the condition that one of them became a witness for the prosecution upon still other indictments. Wright v. Rindskoff, 13 Wis.

The court would also undoubtedly interfere by refusing to try a prisoner who had testified as State's evidence against another if it should appear that the prosecuting officer was pursuing him in violation of the express or implied understanding. Bishop's Cr. Pro., § 1076, note.

"There is no practice in this State requiring a previous application or a formal order of the court to permit an accomplice to become a witness for the State." 63 N. Y. 143; 12 Hun, 215. It is not to be understood, however, that in all conceivable situations of an accomplice before the court that it is in the discretion of the court to allow him to testify for the People. The true rule as to competency seems to be, When the persons indicted are all put on trial together, neither can be a witness for or against the others; but when they are tried separately, though jointly indicted, the People may call those not on trial, though not convicted or acquitted or otherwise discharged, with the permission of the court; but they cannot be called as witnesses for each other though separately tried, while the indictment is pending against them. If acquitted they may be examined, and even if convicted, unless it be for a crime which disqualifies, and then sentence must have followed the conviction. When all are tried together if the People desire to swear an accomplice, he must in some way be first discharged from the record. Wixon v. The People, 5 Park. Cr. 126; Taylor v. People, 12 Hun, 213–214.

When the accomplice is indicted separately from the rest he is of course a competent witness for the prosecution, though no disposition has been made against him.

In fact, with reference to his competency, an accomplice jointly indicted and separately tried is in the same condition as one separately indicted or one not indicted at all. 1 Bish. on Cr. Pro., §§ 1079, 1080. One of several persons indicted, although he have pleaded and defended separately, is not a competent witness for his co-defendants unless immediately acquitted by a jury, or a nolle prosequi en

tered, or convicted and sentenced for an offense which would not disqualify. McIntyre v. People, 9 N. Y. 39.

If a witness who has become State's evidence testifies corruptly, or makes only partial disclosures, he may then, having failed to perform the condition on which he was admitted, be proceeded against for his own crime; but he is not thus liable simply because of a failure by the jury to convict his associates. "It rests," said Lord Mansfield, “on usage, and on the offender's own good behavior, whether he shall be prosecuted or not." And where an accomplice, after making a confession on the usual understanding, refuses to testify, this confession may be given in evidence against him on his trial. Commonwealth v. Knapp, 10 Pick. 477.

As the accomplice is entitled to no protection in respect to other offenses, he is not bound to answer questions relative to such offenses on bis cross-examination. It is not usual to admit accomplices who are charged with other felonies. In the earlier State trials of England, the protection and countenance afforded by the courts to accomplices, spies and informers, was often carried to great lengths; but in modern times a closer scrutiny of the evidence from such a source is required, and more safeguards for the protection of the innocent established, so that the conviction of a prisoner by the aid of an accomplice at the present time, upon such weak and insufficient evidence as brought Algeron Sidney to the block, is almost an impossibility.

reate is based, points out, at the opening of his chapter on the enjoyment of civil rights, that these rights are of three kinds: civil properly so called, political, and public. Civil rights, as contra-distinguished from political rights, flow out of private law, and may be defined as those "faculties which persons are called upon to exercise in their relations with other persons." Such are the rights of property, and the rights springing out of domestic relations. Political rights, on the other hand, are such as flow necessarily from the constitutional law, or the law regulating the relations between the government and the governor. Of these the elective franchise is the best example. But there are rights which, properly speaking, are neither civil nor political, such as the right to freedom of speech and liberty of conscience. They are not civil because they do not go to constitute relations between individuals. No more are they political, for they are exercised outside of all relations to the government. Mourlon, with other civilians, classes these as public rights.

Now, to somewhat forestall the sequel, every one without distinction of age, sex or nationality, is, un

der the French law, in full enjoyment and possession of all public rights. Political rights are so wholly different in their nature that not only do aliens have no part in them, but French citizens themselves enjoy them only upon certain conditions. As with us, citizenship alone does not entitle any one to the exercise of political functions, although citizenship is the fundamental prerequisite. In the enjoyment of civil rights, nationality is the controlling element, and whosoever is French is entitled to the exercise of them all. Thus, as to public rights we find absolute equality between native and alien, and as to political rights insuperable inequality. In considering how far civil rights may be availed of by aliens, we have to distinguish between the several classes of aliens. First, those who reside in France without special authority of the French government, ordinary aliens, and second, those who have acquired the benefits of a special authorization, privileged aliens.

Let us consider first the case of the ordinary alien, and we may now turn to that article in the Civil Code by which the codifiers hoped to remedy the errors of the revolutionary system. Article 11, the one referred to, permits aliens to enjoy the same civil rights in France as are accorded to the French by the treaties with the nation to which the alien belongs. We find, in two articles of the Code, an application of this system as its authors intended it. By the provisions of Article 726, in default of a treaty, an alien would be incapable of acquiring, by succession, the law not permitting him to become the heir even of a Frenchman. But he was not prohibited from transmitting his property, although only his kinsmen, who were French, would be called to the succession, for according to the article aliens could not succeed. By the terms of Article 912, an alien, in the absence of a treaty, might acquire neither by testament nor by donation, but this did not prevent his disposing of his property so long as he did so only in favor of Frenchmen. Thus, according to the Code, aliens could acquire neither by succession, by testament, or by donation, except where it was made possible by treaty reciprocity.

However, this triple incapacity no longer exists. It was finally removed by the law of 1819, which is still in force. This law is as liberal as was that of the Constitutional Assembly, but proceeded from wholly different motives on the part of its authors. France was in need of capital to supply its financial and industrial wants, and the rigor of the Code being considered as working a serious disadvantage to the nation, Articles 726 and 912 were formally repealed. Since then aliens have been able to succeed and take, the same as Frenchmen, and independent of all treaties. But, says Mourlon, by the abrogation of Articles 726 and 912, the law of 1819 did not wholly do away with the system of reciprocity established by Article 11. Articles 726 and 912, in effect, did not alone constitute the entire system. They were only applications of it. The principle remains then so far as all other civil rights are concerned."

Passing for the present certain incapacities of aliens expressly mentioned in the Code, we are called upon to consider shortly a controversy of long standing among French lawyers. It is held by one school that aliens enjoy only those civil rights which are conceded to them either by treaty between France and their own governments or by the express or implicit provision of the French law; incapacity being the rule,

capacity the exception. It is claimed that if this theory were true, in default of a treaty, an alien not authorized to reside in France could be neither proprietor nor creditor; could neither marry nor sue; but the advocates of the theory meet this objection by the introduction of the element of natural law. They claim that the rights of property, family, and action, being natural rights, it is not requisite that they should be expressly conceded, since it is civil rights only which require such explicit concession. The second theory is that aliens enjoy the same civil rights as French citizens, except such as are exclusively accorded to the latter, and certain exceptional rights not appertaining to ordinary aliens, except where accorded by treaty conformably with the reciprocity principle of Article 11; capacity thus being the rule, and incapacity the exception. Without discussing the merits of this controversy, it may be said that the latter theory is the prevailing one. The practical results of the two theories are almost indistinguishable, and it is a condemnable feature of the first, that to justify its practical value it has to have recourse to the vague and unscientific dogma of the law of nature. Mourlon thus sums up the rights of ordinary (not especially privileged) aliens in France:

1st. They enjoy all public rights; but,

2d. They are excluded from all political rights.

3d. They are possessed of all civil rights which the law has not withheld from them. It prohibits to them neither the right of property nor the right of marriage; the right of creditorship; the right of action, either as defendant or as plaintiff-except that in the latter case they are under an obligation to furnish an undertaking for costs, etc. (judicatum solvi) the right of standing in loco parentis (droit de tutelle); or, finally, the right of adoption. Consequently they may marry ; sue in their own name and without the intermediation of a special curator; acquire and dispose of property by the modes of acquisition and disposition provided by French law and not expressly omitted from them; be either obligors or obligees in contracts with French citizens; be guardians (tuteurs), or have guardians appointed over them; and adopt or be adopted.

The result of this is that the law stands practically where it did after the reforms of the constituent assembly, and is essentially as liberal. But by summarizing the rights, other than political, which aliens are not permitted to enjoy, and remembering that they enjoy all civil rights save these, we may get a more adequate and exact notion of the state of the law.

First. They have no benefit of the privilege actor sequitur forum rei.

Second. They can appear as plaintiffs in an action only upon condition of giving the judicatum solvi. Third. They cannot take advantage of a general assignment to their creditors.

Fourth. Their status and capacity are governed not by the French law but by that of their own country.

Prior to 1867, they were subject to arrest in civil actions where in like circumstances citizens were exempt; but this is no longer the case.

Article 11 being still operative to the extent already pointed out, and requiring treaty reciprocity for certain purposes, to acquire knowledge of the measure of the civil rights of an American in France, it would ap

pear to require an examination of the treaty of 1853, by which it was undertaken to regulate this matter so far as the relations between citizens of France and the United States were concerned, but such examination would disclose the existence of no exceptional right or privilege in favor of Americans, and not existing under the general law.

Allusion has been already made to a second or privileged class of aliens, those authorized by government to fix their domicile in France. So far as the enjoyment of civil rights is concerned, this class of aliens are on an equality, to all intents and purposes, with French citizens, but the equality is not quite perfect. Thus their legal status is still governed by the law of their own country, if they have any, otherwise by French law. And again, French citizens, deriving their rights from the law, can only be deprived of them by process of law; but all such exceptional rights as accrue to aliens because of a special authority to establish a residence in France may be withdrawn by the governmental power which has granted them. Further, French citizens enjoy their civil rights always, in or out of France; aliens only upon condition of residence in France.

Authority to become domiciled in France may be solicited by any alien, even by those who without desiring to be naturalized wish to settle in the country for a longer or shorter time, and it is for the government to determine whether such privilege shall be granted. In this respect the French law is more liberal than our own under which all special privileges look toward ultimate naturalization. As for the rules and principles of naturalization in France, they are not within the scope of this essay. Suffice it to say that aliens may acquire citizenship by benefit of law, as by birth, marriage, etc.; by naturalization, as after a residence of three years after authorization; or by the annexation of territory to France.

Such, then, is the spirit of the French law. The alien may never participate directly in those rights which flow out of the personal law, by which law personal capacity, the peculiar constitution of the family, minority and majority, the legitimacy of children, marital authority and parental power, are regulated and controlled; but in this respect continues to be governed by the particular laws of his own nation. But," in the words of M. Laferriere, "the right to contract, to sell, to acquire property, movable and immovable, to succeed to his next of kin, to transmit by way of succession, donation, testament, and generally all the rights which are inclosed in the vast circle of commerce and of prosperity," are placed at the disposal of "foreigners aud of the great human family," but to be exercised by them conformably to the territorial laws of France.

In respect to liberality toward strangers, France, today, stands in advance of the rest of Europe. But throughout christendom the principle of isolation, which dominated in ancient societies, has given way to that of intercommunion and interdependency. If there are in our laws, and in those of the great European States, survivals of principles inherited from the old time when all beyond the borders were enemies, we may still rest confident that being opposed to the fundamental laws of social progress as defined by our legists and sociologists, these lingering relics of barbarism will be outgrown, and laws of alienage be practically regarded as mere legal archaisms.

WILLIAM M. IVINS.