witnesses on trial, yet with the grand jury it seems enough that one witness prove one act, and another prove another act. o § 803. Perjury. The old law held that there must be two witnesses upon an indictment for perjury; that one alone is not sufficient, because there is in that case only one oath against another. p The strictness of this rule, however, has long since been greatly relaxed; the true principle being that the evidence must be something more than sufficient to counterbalance the oath of the prisoner, and the legal presumption of his innocence. q The oath of the opposing witness, therefore, will not prevail, unless it be corroborated by other independent circumstances. But these circumstances need not be tantamount to another witness, it being sufficient if they are strongly corroborative of the accusing witness, r and it must corroborate him in something more than slight particulars; 8 and must not merely show that the account is probable, but must prove facts ejusdem generis, and tending to produce the same result. t § 804. Hence if the assignment of perjury be proved by one witness, and strong circumstantial evidence be brought forward, such evidence will supply the want of another witness. u Declarations of the defendant, inconsistent with the oath, are sufficient as corroboration. v A single witness is sufficient to prove that the defendant swore as is alleged in the indictment. w o Burr's Trial, 196; U. S. v. Hanway, 2 Wall. Jr. 139. Post, § 2627. p R. v. Muscot, 10 Mod. 195; 1 Starkie Ev. 443; 4 Hawk. P. C. b. 2, ch. 46, § 10; 4 Bla. Comm. 358; 2 Russell on Crimes, 1791. Post, § 2276. 1 Greenleaf on Ev. § 257; U. S. v. Wood, 14 Peters, 440; R. v. Roberts, 3 C. & K. 607. r 1 Greenl. on Ev. § 257; State v. Moliere, 1 Dev. 263; State v. Hayward, 1 Nott & McC. 547 ; R. v. May hew, 6 C. & P. 315; Roscoe on Crim. Evid. 686; Clark's Ex'rs v. Van Reimsdyk, 9 Cranch, 160. Post, § 2275, 2276 a, 2278. 8 Yates's case, 1 Car. & Marshman, 139. Post, § 2278. t Simmons v. Simmons, 11 Jur. 830. u R. v. Lee, Archb. C. P. 9th ed. 148. See post, § 2276. v State v. Moliere, 1 Dev. 263; Dodge v. State. 4 Zabr. 455. w Com. v. Pollard, 12 Met. 225. Post, § 2268, 2276 a. 759 IX. WHEN A WITNESS WILL BE EXCUSED FROM ANSWERING ON THE [For rules as to testing witnesses in this respect, see post, § 805. Witness cannot be compelled to give answer which may x 1 Stark. Ev. 165, 166; Phil. & y Bank of Salina v. Henry, 2 Denio, - Henry v. Bank of Salina, 3 Denio' yl R. v. Maloney, 9 Cox C. C. 26. Court determines as to question. It is the province of the court to determine whether a direct answer to a question may criminate. b § 807. Distinction between material questions and questions to disgrace witness. A greater latitude is allowed in asking a question the object of which is material either to the prosecution or the defence, than in putting one for the mere purpose of degrading the witness. c nary character, having reference to some barely possible contingency. R. v. Boyes, 1 B. & S. 311; 9 Cox C. C. 32; 2 F. & F. 157; Wroe v. State, 20 Ohio St. 460." The witness may claim the protection of the court at any stage of the inquiry, although he may already have answered without objection some questions tending to criminate him. R. v. Garbett, 2 C. & K. 474. The witness himself is not the sole judge whether his evidence will bring him into danger; the judge must see, from the circumstances of the case, and the nature of the evidence, whether there really is reasonable ground to apprehend danger to him from his being compelled to answer. Osborn v. London Dock Co. 10 Exch. 698; 24 L. T. Exch. 140; Sidebottom v. Adkins, 27 L. T. Ch. 152; R. v. Boyes, 1 B. & S. 311; 30 L. T. Q. B. 301; Ex parte Fernandez, 10 C. B. N. S. 3, 39, 40; 30 L. T. (C. P.) 321." Archbold's C. P. (ed. of 1871) 277. b Com. v. Brainard, Thacher C. C. 146; People v. Mather, 4 Wend. 229; Territory v. Nugent, 1 Martin, 114; Grannis v. Branden, 5 Day, 260; Jackson v. Humphrey, 1 John. R. 498; Galbraith v. Eichelberger, 3 Yeates, 515; Vaughan. Perrine, 2 Pen. 728; Marbury v. Madison, 1 Cranch, 144; 1 Burr's Trial, 245; Southard v. Rexford, 6 Cowen, 254; Real v. People, 3 Hand (42 N. Y.), 270. Post, § 809. c Greenleaf on Ev. § 454, 455; Phil. & Am. on Ev. 917; 2 Phil. Ev. 422. Thus, in a case already cited, where a witness, in an investigation by a grand jury, was asked whether he knew of any person, excepting himself, who had bet at a faro table, within the last twelve months- the question being one in chief, for the purpose of supporting a prosecution — and the witness declined answering, on the ground of self-crimination, the subject was examined by a learned judge with great clearness. “The next inquiry is," he said, "was the witness right in refusing to answer the question, on the ground that the answer would implicate himself? The record shows that the game at faro is played with cards, by one person, as banker, against any number of persons, each person playing for himself, without any aid from the others, against the banker, and that there is no common interest among those persons playing against the banker. Thus it appears that each player against the bank is separate and independent of all others. The inquiry made by the grand jury is, 'Tell who bet at the game of faro, not naming yourself.' The answer of the witness is (supposing him to be A.) that if I tell that B., C., and D. played, it will be either full or partial evidence that I played.' This is the whole argument of the case an argument which, I think, is totally untenable in law and reason; and I am very clear that the witness is bound to answer the question propounded by the grand No question allowable which involves circumstantial evidence of But in no case is a witness compelled to furnish a fact guilt. jury. Suppose A. should swear that on the 10th of March, in the markethouse, he saw B. play at faro; then A. is indicted for playing at faro on the 10th of March, at the market-house, and on the trial, the prosecution should give in evidence, that on the trial of B., A. had sworn, that on that day, at that place, he saw B. play would any one pretend that the indictment is proved? The answer is obvious. I understand the rule laid down by Chief Justice Marshall, in Burr's Trial, 245, to be the true rule of law. It is this: That it is the province of the court to judge whether any direct answer to the question that may be proposed, will furnish evidence against the witness. If such answer may disclose a fact which forms a necessary and essential link in the chain of testimony, which would be sufficient to convict him of any crime, he is not bound to answer it, so as to furnish matter for that conviction. In such case, the witness must himself judge what his answer will be; and if he say on his oath he cannot answer without accusing himself, he cannot be compelled to answer. Both parties rely on this rule. Apply the rule to the case before the court. The witness says he cannot answer without accusing himself of crimes. The question is, Who did you see betting at faro, except yourself?' It is believed that a direct answer in the negative to this would be, I saw no one bet at faro.' This answer, I think, all will allow, does not accuse him. But suppose that his answer must be, that he saw B. bet at faro, can it not be true, that though B. bet, yet he, the witness, did not? Does the mere fact, that one man saw another commit crime, prove in law and reason, that he who saw the crime committed was a participator? The only irresistible fact that is contained in it is, that he who saw the fact, must have been in such a position, with respect to the actors, that he could see or know the thing he swears to. The rule then is, that the court must judge whether a direct answer would furnish any matter for his conviction? If the witness answer, that he saw no one bet, or that he saw B. and C. bet, he furnishes no matter that would be a necessary link in the chain of testimony to convict him of betting at faro. Suppose A. indicted for betting at faro; what in law, must be the evidence? The first link would be, that there was a faro bank, that there was a banker, and that A. and the banker did play at the game, and that A. and the banker did bet on the event of the game. These several links would form a chain of testimony sufficient to convict A. Now, though it be true, that without proof of the existence of the bank and the banker, no crime can be predicated thereon, yet it is equally true, that the facts that the bank and the banker both existed, form no part of the offence of betting at faro. The essential links are, that there was a betting on the game; these two must be coupled together, otherwise no offence can exist; and these two must be coupled with a third link, that is, that A. bet on the game. Then his offence is complete, entirely so, without naming who was the banker, or who else bet at the same time. Can it be pretended, that if it is said by A. that B. bet at the game, that on the trial of A. it must be proved that B. bet, before A. can be convicted? I will answer, that it cannot be so pretended. This, I think, most clearly shows that there which might become a link in the chain of criminating evidence. cl In a well argued opinion by Marcy J., in a leading case in New York, c2 it was said: "Where the disclosures he may make can be used against him to procure his conviction for a criminal offence, or to charge him with penalties and forfeiture, he may stop in answering before he arrives at the question the answer to which may show directly his moral turpitude. The witness, who knows what the court does not know, and what he cannot communicate without being a self-accuser, is to judge of the effect of his answer, and, if it proves a link in the chain of testimony, which is sufficient to convict him, when the others are made known, of a crime, he is protected by law from answering the question. If there be a series of questions, the answers to all of which would establish his criminality, the party cannot pick out a particular one and say, if that be put the question will not criminate him. If it is one step having a tendency to criminate him, he is not compelled to answer. d The same privilege that is allowed to a witness, is the right of a defendant in a court of equity, when called on to answer. In Parkhurst v. Lowten, 2 Swanst. 215, the chancellor held, that the defendant was not only not bound to answer the question, the answer to which would is nothing solid in the objection of the witness. Let us put a case where a direct answer to a question would implicate a witness. Thus, Did you set up, and keep a faro table?' Now, here the court can clearly see, that if the answer be yes, the witness would subject himself to the penalty, for setting up and keeping a faro table; and if the answer be no, he cannot so subject himself. But whether the answer be yes or no, is unknown to the court ; and in this case, the witness must be the judge whether his answer will be yes or no, and he may say he cannot answer the question without implicating himself. But in this case it is said, if the witness is bound to tell who bet at the game, without naming himself, then those persons who are named will be examined as to the fact whether he bet and if the witness is not compelled to name who did bet, then they will remain unknown to the grand jury, and cannot be examined whether the witness bet. I understand this doctrine to be grounded more on the fear of retaliation than on any sound principle of law. Will the law permit a man to keep offences and offenders secret, lest the offenders should, in their turn, give evidence against him? I have looked into the cases cited at the bar, and I am unable to perceive any principle in any of them, which ought to vary the foregoing opinion." Ward v. State, 2 Mo. 98. See R. v. Boyes, 9 Cox C. C. 32, ante, note a. cl Bank of Salina v. Henry, 2 Denio, 155; Henry v. Bank of Salina, 1 Comst. 83; Lea v. Henderson, 1 Cold. (Tenn.) · 146. See Short v. Mercier, 1 Eng. R. L. & E. 208. c2 People v. Mather, 4 Wend. 229. d 16 Ves. 242. |