§ 794. On a joint trial, when a motion is made by the defendant for a direction to the jury to acquit another defendant on the ground that there is no evidence against him, so that he can be a witness for the party making the motion, it is for the court to determine whether sufficient evidence exists. z And no exception lies to such refusal. a In Ohio, the right of a co-defendant to testify is secured by statute. b A co-defendant or accomplice, who has pleaded guilty, or been convicted, provided he is not thereby rendered infamous, is a competent witness for his co-defendants; c and so when he has been discharged, and indicted separately. d But in a New Hampshire case, it has been forcibly urged that while still unsentenced his interest in lessening a penalty disqualifies. e A joinder of defendants, unless the offence be joint, does not work such disability.f Under the statutes removing disability on account of interest, one defendant may be a witness for his co-defendant, to the same effect as he could be a witness for himself. f1 VII. WANT OF RELIGION. $795. Effect on competency. A man who refuses to recognize a state of rewards and punishments, either for this world or the next, is excluded from being a witness. g It is not, indeed, essential that the witness should be a Christian, or believe in the Bible; it is sufficient if he believe in a God, in a future state of rewards and punishments, and in the moral obligation of the oath he is about to take. Gentoos, Jews, Mahometans, Turks, and Moors, may be witnesses. h Atheists, however, and z Brister v. State, 26 Ala. 109. See post, § 3362; ante, § 433. a Com. v. Robinson, 1 Gray, 555; U. S. v. Marchant, 12 Wheat. 480. See Shay v. Com. 12 Casey, 305. b Code Crim. Proc. § 146. c Ballard v. Noaks, 2 Pike, 45; Carpenter v. Crane, 5 Blackf. 119; State v. Stotts, 26 Mo. (5 Jones) 307; Com. v. Smith, 12 Metc. 238; State v. Jones, 51 Maine, 126; Delozier v. State, 1 Head, 45; R. v. Ford, 2 Salk. 689; contra, State v. Young, 39 N. H. 283. d McKenzie v. State, 24 Ark. 636. e State v. Young, 39 N. H. 283. f Strawhern v. State, 37 Missis. 422. f State v. Gigher, 23 Iowa, 318. Ante, § 782 a, c. 9 B. N. P. 292; Omichund v. Barker, Willes, 549; 1 Atk. 44, S. C.; 2 Russ. on Crimes, 970. h Willes, 549; Acheson v. Everett, Cowp. 390; Gomez Serra v. Munoz, 2 Stra. 821; Fachina v. Sabine, Stra. 1104; 1 Atk. 19, S. C.; 1 Leach, 64. such like infidels, professing no religion that can bind their consciences to speak the truth, are inadmissible. In this country, it is considered immaterial whether the witness believe that the punishment will be inflicted in this world or in the next; it is enough if he have the religious sense of accountability to the Omniscient Being, who is invoked by an oath.j In New York, by statute, it is provided, that the test of the competency of a witness is his belief in the existence of a Supreme Being, who will punish false swearing.k In Pennsylvania, it is directly decided that the true test of the competency of a witness, on the ground of his religious principles, is, whether he believes in the existence of a God who will punish him if he swear falsely. Hence those are competent who believe future punishment not to be eternal. m In Ohio, it is held that a witness's belief that punishments for false swearing are inflicted in this life only, might go to his credibility.n In Connecticut, it was formerly decided that those who believe in a God, and in rewards and punishments in this world, are not competent witnesses. o The legislature of that state has since enacted that such persons shall be received as witnesses. In Massachusetts, it has been said that mere disbelief in a future existence goes only to the credibility.p In Maine, a belief in the existence of the Supreme Being is rendered sufficient, without any reference to rewards or punishments. q In Virginia, a belief in God and his providence has been held sufficient. In Illinois, it is said that a person who has no religious belief, nor belief in a Supreme Being, and who, though recognizing his amenability to human law, in case he testify falsely, yet does not feel accountable morally, here or hereafter, cannot be admitted as a witness, and his unbelief may be established by the testimony of others, or the court may, on explanation by him, decide on his competency. rl § 796. How proved. A defect of religious faith is never presumed, but the burden of proof is on the party objecting to the witness to show that he is a disbeliever. 8 And the proper time for showing the religious opinions of a witness is before he is sworn; after he is sworn it is too late. t § 797. The ordinary mode of proving the religious views of a witness is to produce evidence of his declarations made to others. t1 The weight of opinion is that the witness himself cannot be questioned or examined. u And if the witness has changed his opinions, such change must be proved by third persons, and that although the change may be quite recent. v § 798. Thus, where the incompetency of a witness on account of a defect in his religious belief had been established by evidence of his declarations, it was held that the witness could not be sworn on his voir dire to restore his own competency by showing a change of opinion. w In Vermont and Tennessee, however, it seems that, contrary to the rule so established, the witness himself may be examined. And in the U. S. Court, in the District of Columbia, he has been permitted to explain his views, but not under oath.y x "It has been sometimes allowed to a counsel," says Mr. Justice Talfourd, z "to question witnesses on their voir dire as to t Smith v. Coffin, 6 Shep. 157; Gridley, 18 Johns. 98; Smith v. Coffin, Queen's case, 2 B. & B. 284. t1 Central Milit. Tr. R. R. v. Rockafellow, 17 Ill. 541. u Smith v. Coffin, 6 Shep. 157; Wakefield v. Ross, 5 Mason, 19; Queen's case, 2 B. & B. 284; 2 Rev. Stat. (New York) c. 408, s. 87; 1 Swift's Digest, 739; Curtis v. Strong, 4 Day, 51; Jackson v. Gridley, 18 Johns. 98; Com. v. Smith, 2 Gray, 516. 6 Shepley, 157. w Com. v. Wyman, Thach. Crim. C. 432; State v. Townsend, 2 Harr. 543; U. S. v. White, 5 Cranch C. C. R. 38. x Scott v. Hooper, 14 Verm. 535; Harrel v. State, 1 Head, 125; U. S. v. White, 5 Cranch C. C. R. 38. y U. S. v. White, 5 Cranch C. C. R. 38; so also Central Military Tr. R. R. v. Rockafellow, 17 Ill. 541. z 6 Dick. Q. S. 535. their religious belief; but it may be doubted whether a witness would not be justified in insisting, when so questioned, on the simple answer that he considers the oath administered in the usual form binding on his own conscience, and in declining to answer further; for a confession, thus forced from him, of a disbelief in a state of retribution, would certainly be esteemed as disgraceful in a court of justice, and there seems no reason why a person should thus be taxed, perhaps to his own infinite prejudice, merely because he appears to perform a public duty in obedience to a subpoena. At all events, it is quite clear that a witness may properly refuse to answer any questions which go beyond an inquiry into his belief in a Superior Being to whom man is answerable; and that it is the duty of counsel to refuse, however urged, to put such questions, which are altogether impertinent and vexatious.” § 799. Mode of swearing witness. The common and regular way of swearing by a Christian is on the four Evangelists, viz., the New Testament. a All witnesses, indeed, must be sworn. after a form, the obligation of which they acknowledge: as, a Jew, on the Pentateuch or Old Testament, with his head covered;ba Mohametan, on the Koran; c a Gentoo, touching with his hand the foot of a Brahmin or priest of his religion; a Brahmin, by touching the hand of another such priest; d a Chinese, by breaking a china saucer; e a Scotch Covenanter, or member of the kirk, by holding up the hand without kissing the book;ƒ but if a witness himself declares that he acknowledges the sanction of the oath in the usual form, there seems no just ground for troubling him with further questions. It is certain that in whatever form he consents to be sworn, e. g. if though a Christian he declines to be sworn on the New, but consents b Gomez Serra v. Munoz, Stra. 821; see Ibid. 1113. a See, per Lee, C. S., R. v. Bosworth, Strange, 1114. The adjuration oath was 66 on the true faith of a Christian," till altered for the Jews by 10 Geo. 1, c. 10. So, the swearing on a common prayer-book with the four gospels in the same cover, will suffice in order to an indictment for perjury. Rokeby v. Langston, 2 Keb. 314; McAdams v. Weaver, 2 Kerr (New Brunswick), 176. Post, § 2205. c R. v. Morgan, 1 Leach, 54. d Omichund v. Barker, Wil. 545. e R. v. Entrehman, 1 C. & Mar. 248. See The Merrimac, 1 Benedict, 490. ƒ R. v. Mildrone, Leach, 412 ; R. v. Walker, 2 Sid. 6, cited Cowp. 390; Mee v. Reid, Peake C. N. P. 23; 1 Leach, 498. Post, § 2205. to be sworn on the Old Testament, g he may be afterwards asked whether he hold such oath binding on his conscience; but not whether he considers any other form of oath more binding, for he will be liable, if he gives false testimony, to the penalties of perjury. h § 800. Immoral and degraded life. It is for the jury to determine what weight is to be given to the testimony of one whose immoral and degraded life shows a want of religious sentiment, or a disregard to personal character or reputation. i When want of religion appears in cross-examination. — If, on cross-examination, it appears that the witness has not the moral sense requisite to make him a competent witness, the court, at its discretion, may strike out his testimony, or leave it to the jury with proper instructions as to its weight. ¿1 VIII. NUMBER OF WITNESSES NECESSARY. § 801. At common law, one witness was sufficient in all cases with the exception of perjury, at every stage of the prosecution.j § 802. Treason. — In high treason, two witnesses are required, both before the grand jury and at the trial; both of the witnesses to the same overt act or one of them to one overt act, and another of them to another overt act of the same species of treason; unless the defendant shall willingly, without violence, confess the same. k If the jury do not give credit to both of the witnesses, the defendant shall be acquitted. But one witness even, in England, is sufficient to prove a collateral fact; m as, for instance, to prove that the defendant is a natural born subject, n or the like. In this country, although the Constitution declares that two witnesses are necessary to produce conviction, it may not be so strictly and absolutely necessary to authorize an indictment being found a true bill. Although there must be two g Edmonds v. Rowe, Ry. & M. C. N. P. 77. j 2 Hawk. c. 46, s. 2 ; Fost. 233. h 2 Br. & B. 284; 3 Br. & B. 232. 12, s. 22; 5 & 6 Ed. 6, c. 11. s. 12. |