bring out clearly their proper force and significance before the jury.167 Hence a witness, after describing a person seen by him, may state that, in his opinion, it was the prisoner, or that he resembled the prisoner, under the rule permitting a non-expert witness to give his opinion where the jury would be unable, otherwise; to form an intelligent conception of identity. 168 The testimony of a witness that he believed he recognized the accused as the one he saw taking away stolen property, and that he saw and recognized other men who were with him, has been admitted. 169 Indeed, even if it be conceded that identity is a fact, the answer should hardly be rejeeted because the witness is not positive of the identity of the accused beyond all doubt; or, because, through excessive caution, he qualifies his answers by such expressions as "I think," or "I believe." Witnesses cannot be required to state all facts with equal positiveness.1 170 Pointing out a person by a witness to the jury without naming him is a sufficient identification if his name is shown by independent evidence, 171 nor will all the testimony of a witness be expunged merely because he failed to identify the accused when the latter would not arise for identification. § 56. Identification of the voice.-Evidence of identity consisting of the recognition of the voice of the accused by a witness who is familiar with it has been received. The witness may state that the accused was present on a certain occasion, and made a statement, and may then add that he knows it was the accused because he recognized his voice.172 See Underhill on Evid., § 186. 15 White v. Commonwealth, 4 Ky. L 373; Commonwealth v. Sturtivant, 117 Mass. 122, 19 Am. 401n; State v. Powers, 130 Mo. 475, 32 S. W. 984; State v. Cushenberry, 157 Mo. 168, 56 S. W. 737; State v. Lytle, 117 N. Car. 799, 23 S. E. 476; Jordan v. State, 50 Fla. 94, 39 So. 155; Coffman v. State, 51 Tex. Cr. App. 478, 103 S. W. 1128; State v. James, 194 Mo. 268, 92 S. W. 679 (as to identification of things); People v. Rolfe, 61 Cal. 540; People v. Stanley, 101 160 State v. Welch, 33 Ore. 33, 54 Pac. 213. 170 People v. Rolfe, 61 Cal. 540, 543; Underhill on Evid., § 186. 171 Commonwealth v. Whitman, 121 Mass. 361, 362. So the witness may describe the tone of voice used, whether angry or otherwise, in a conversation overheard by him between the accused and the victim of a homicide.173 This rule is particularly applicable in the case of nocturnal crimes, where it is physically impossible for the witness to have seen the accused, though he may have been in close proximity to him. The same rule would doubtless apply in the case of a blind witness.17 The accused will not, unless he shall go upon the witness stand, be allowed to put his own voice in evidence in order to show his natural voice by speaking aloud in court. If permitted to speak, not being under oath at the time, he may simulate. The jury will not hear his natural and ordinary voice, but one which is manufactured for the occasion. It has also been held that it is not material that the witness who had a conversation over the telephone with the accused, did not know at the time of the conversation who was talking. The conversation over the telephone may be proved if on subsequent acquaintance with the accused, the witness can identify the voice which he heard over the telephone as that of the accused.175 The accused may prove to contradict a witness who states he recognized the voice of the accused on the occasion of the crime. that another person present had a similar voice and that this person's voice had on other occasions been mistaken for that of the accused.1 176 749, 23 N. W. 304; Givens v. State, 35 Tex. Cr. App. 563, 34 S. W. 626; Davis v. State, 15 Tex. App. 594, 598; Stepp v. State, 31 Tex. Cr. App. 349, 20 S. W. 753; Fussell v. State, 93 Ga. 450, 21 S. E. 97; Waggoner v. State (Tex. Cr. App.), 98 S. W. 255; Mack v. State, 54 Fla. 55, 44 So. 706, 13 L. R. A. (N. S.) 373n. A witness may be allowed to state that he heard a person say something and that it was his opinion it was the voice of the accused. Way v. State (Ala.), 46 So. 273. 173 Campos v. State, 50 Tex. Cr. App. 289, 97 S. W. 100. 174 See also admissions and commu § 57. Statutory competency of the accused.-Because of the common-law rule rendering parties to the record incompetent as witnesses, the defendant, in a criminal trial, was incapable at common law of testifying in his own behalf. It was considered certain that his fear of punishment, whether he were conscious of guilt, or of innocence, would cause him to testify untruthfully; and, to avoid this, his testimony was wholly excluded. At the present time, in most states, the accused may, as a matter of statutory right, if he so elect, testify for himself. These statutes do not, of course, violate a constitutional provision that a prisoner shall not be compelled to testify against himself.1 But as they are derogatory of the common law, they should receive a strict construction, though not such a construction as will nullify the legislative intention, and deprive the accused of his right to speak. These enactments leave the exercise of the right to testify wholly optional with the accused, and many of them in terms provide that his failure or his neglect to exercise it, cannot be used as an argument against him.2 In the federal courts the competency of witnesses is regulated by a statute which provides that the laws of the state within whose limits the federal court is located shall be its rules of decision as to competency in trials at common law, in equity and admiralty. As the criminal jurisdiction of the federal courts is purely statutory, the competency of witnesses in criminal trials in those courts is not regulated by the statute of the state in which the court is located, but by the common law of the state, modified by the federal statutes defining crimes and regulating criminal proceedings and the competency of witnesses.3 2 See post, § 58. Note on compelling accused to cover or uncover his face or head, 94 Am. St. 339; note on compelling accused to try on a shoe, 94 Am. St. 344; note on compelling accused to exhibit marks on his person, 94 Am. St. 340; note on compelling accused to make footprints, 94 Am. St. 343; note on compelling accused to give specimen of his handwriting, 94 Am. St. 344, 345; note on compelling accused to utter certain words or sounds to show his voice, 94 Am. St. 341; note on right of party to testify as to his intent or motive, 21 Am. St. 314; note on cross-examination of defendant in criminal prosecution, 38 Am. St. 895897. 3 United States v. Hawthorn, 1 Dill. (U. S.) 422, 26 Fed. Cas. 15332; Logan v. United States, 144 U. S. 263, 36 L. ed. 429, 12 Sup. Ct. 617. This matter is now regulated by the act of March 16, 1878, to be found in 20 U. S. Stat. L. 30, p. 312, ch. 37. The statutory provisions of the various states differ in detail, but their central idea is to give the accused the fullest opportunity to testify, while permitting no inference of his guilt to arise from his total silence. The statute of Michigan which reads: "No person shall be disqualified as a witness in any criminal case, or proceeding, by reason of his interest in the event of the same being a party, or otherwise, or by reason of his having been convicted of any crime; but such interest or conviction may be shown for the purpose of affecting his credibility; provided, however, that the defendant in any criminal case shall only at his own request be deemed a competent witness, and his neglect to testify shall not create any presumption against him, nor shall the court permit any reference or comment to be made upon such neglect," may be taken as an example. § 58. The accused is not compellable to testify against himselfHis credibility.-Though the accused is now a competent witness for himself, he cannot, under existing constitutional provisions, federal and state, "be compelled in any criminal case to be a witness against himself." These provisions should be applied in a broad and liberal spirit, in order to secure to the citizen that immunity from every species of self-accusation implied in the language in which they are expressed." They are meant to protect the accused not only from being compelled to answer questions calling for an express confession of guilt, but from those calling for collateral circumstances also. Most of the statutes conferring competency upon the accused expressly provide that he can be called as a witness at his own request only. The purpose of these statutes is to confer a privilege upon him, not to impose an obligation upon the state to call him as its witness. Hence, such a statute does not entitled him to demand that he shall be called as a witness for the prosecution, even to prove his own handwriting." If the accused goes on the witness stand in his own behalf the credibility of his evidence is for the jury alone. U. S. Const., Fifth Amend. These provisions have been held applicable to accused persons and witnesses summoned to appear before the interstate commerce commission, Counselman v. Hitchcock, 142 U. S. 547, 562, 35 L. ed. 1110, 12 Sup. Ct. 195, to legislative investigations, Emery's Case, 107 Mass. 172, 179, 9 Am. 22, and to proceedings to punish for contempt, In re McKenna, 47 Kan. 738, 28 Pac. 1078. 504. State v. Slamon, 73 Vt. 212, 50 Atl. 1097, 87 Am. St. 711. 'Commonwealth v. Pratt, 137 Mass. 98, 107. "Miller v. State, 15 Fla. 577; State v. Napper, 141 Mo. 401, 42 S. W. 957; Kirkham v. People, 170 Ill. 9, 48 N. E. 465; Wilson v. State, 69 Ga. 224. The court may instruct the jury that they are not to accept the evidence of the accused blindly, or any further than it is corroborated by People v. Reardon, 109 N. Y. S. other evidence, but may consider Emery's Case, 107 Mass. 172, 179, 9 Am. 22; Rogers v. State, 4 Ga. App. 691, 62 S. E. 96; Pitts v. State, 140 Ala. 70, 37 So. 101; Eaker v. State, 4 Ga. App. 649, 62 S. E. 99; Tooke v. State, 4 Ga. App. 495, 61 S. E. 917; Cooper v. State, 86 Ala. 610, 6 So. 10, II Am. St. 84, 4 L. R. A. 766; whether it is true, and is given in good faith, or merely to prevent a conviction. State v. Mecum, 95 Iowa 433, 64 N. W. 286. But a charge reminding the jury that the accused is the only surviving witness of a homicide, for which he is on trial, while a the same time emphasizing his interest in the outcome of the trial end |