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Its value, of necessity, must be estimated by the jury. If it be doubtful whether the jury heard or understood the proposition to which his silent assent is claimed, the jury may determine it. State v. Perkins, 10 N. C. 377; Berry v. State, 10 Ga. 511; 2 Phil. Ev. (Cowen & Hill's notes), 194, note 191.

In Greenfield v. People, 85 N. Y. 85, 39 Am. Rep. 636, Judge Miller says: "The acts and conduct of a party at or about the time when he is charged to have committed a crime are always received as evidence of a guilty mind, and while, in weighing such evidence, ordinary caution is required, such inferences are to be drawn from them as experience indicates is warranted.

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And the demeanor of the prisoner at the time of his arrest, or soon after the commission of the crime, or upon being charged with the offense, is a proper subject of consideration in determining the question of guilt. Such indications, however, are by no means conclusive, and must depend greatly upon the mental characteristics of the individual."

The conduct of a person charged with crime, immediately after the commission, is always the proper subject of inquiry. If he attempts to run away, or hide and evade the officer, it is a circumstance proper to go to the jury.

As has been said, the conduct and demeanor of the prisoner at the time of his arrest, or soon after the commission of the crime, may go to the jury as evidence of a guilty mind, and, so far as the testimony was confined to a reasonable time after the discovery of the crime and his arrest, it was certainly admissible. Greenfield v. People, 85 N. Y. 75, 39 Am. Rep. 636; State v. Baldwin, 36

Kan. 1.

It is an important circumstance always-the conduct of the person charged with the crime when they first hear of the offense committed; and also their conduct when the crime is first charged home upon them. Now, among the ordinary evidences of guilt, is also the conduct of the party after the deed is committed. Flight and concealment are considered very strong evidences of guilt always.

When it is in the power of the person to explain, his failure to do so is strong presumptive evidence against him. Gordon v. People, 33 N. Y. 501.

In closing my observations upon this subject it may be well to say that all confessions are prima facie involuntary and inadmissi

ble. People v. Rodriguez, 10 Cal. 50; People v. Ah How, 34 Cal. 218; People v. Gelabert, 39 Cal. 663; Biscoe v. State, 67 Md. 6. Nor are confessions presumed to have been voluntarily made when the party making it is restrained of his liberty, or is in immediate apprehension of great bodily harm. Hudson v. Com. 2 Duv. 531; Newman v. State, 49 Ala. 9; Dick v. State, 30 Miss. 593; Miller v. People, 39 Ill. 457; State v. Berry, 21 Me. 171; Stephen v. State, 11 Ga. 225; Simon v. State, 5 Fla. 285; Com. v. Chabbock, 1 Mass. 144; Whaley v. State, 11 Ga. 123; People v. Smith, 15 Cal. 408; State v. Ostrander, 18 Iowa, 435; Com. v. Curtis, 97 Mass. 574; Peter v. State, 4 Smedes & M. 31; State v. Peter, 14 La. Ann. 527; Wiley v. State, 3 Coldw. 362.

Contradictory statements by the accused are competent evidence against him. McMeen v. Com. 5 Cent. Rep. 887, 114 Pa. 300.

CHAPTER XLI.

EVIDENCE AFFORDED BY ACCOMPLICES.

§ 319. Who is an Accomplice.

320. Immunities of.

321. Testimony of Accomplice Competent to Convict.
322. Caution against the Infirmities of this Evidence.
323. Corroborative Testimony Should be Required.
324. Extent of Corroboration is for the Jury.

325. Cross-examination of an Accomplice.

326. Rights of an Accomplice Giving Evidence for the State.
327. Rule as to Co-defendants who have Pleaded Guilty.
328. Credibility of Accomplice is for the Jury.

329. Evidence of Detectives, Decoys and Spies.

§ 319. Who is an Accomplice.-An accomplice is a person involved either directly or indirectly in the commission of the crime. To render him such, he must in some manner, aid, or assist, or participate in the criminal act, and by that connection he becomes equally involved in guilt with the other party by reason of the criminal transaction. People v. Smith, 28 Hun, 626.

§ 320. Immunities of.-Accomplices in guilt, not previously convicted of an infamous crime, when separately tried are competent witnesses for or against each other; and the universal usage is that such a party, if called and examined by the public prosecutor on the trial of his associates in guilt, will not be prosecuted for the same offense, provided it appears that he acted in good faith and that he testified fully and fairly.

Where the case is not within the statute, the general rule is that if an accomplice discloses fully and fairly the guilt of himself and his associates, he will not be prosecuted for the offense disclosed; but it is equally clear that he cannot by law plead such facts in bar of any indictment against him, nor avail himself of it, upon his trial, for it is merely an equitable title to the mercy of the executive, subject to the conditions before stated, and can only come before the court by way of application to put off the trial in order to give the prisoner time to apply to the executive

for that purpose. Rex v. Rudd, 1 Cowp. 332; United States v. Ford, 99 U. S. 594, 25 L. ed. 399.

§ 321. Testimony of Accomplice Competent to Convict.— In People v. Costello, 1 Denio, 83, Mr. Justice Beardsley said: "Although it has often been said by judges and elementary writers that no person should be convicted on the testimony of an accomplice unless corroborated by other evidence, still, there is no such inflexible rule of law. It is a question for the jury, who are to pass upon the credibility of an accomplice, as they must upon that of every other witness. His statements are to be received with great caution, and the court should always so advise; but, after all, if this testimony carries conviction to the minds of the jury, and they are fully convinced of its truth, they should give the same effect to such testimony as should be allowed to that of an unimpeached witness, who is in no respect implicated in the offense. Such testimony will authorize a conviction in any case. The court certainly should advise great caution on the part of the jury where the testimony depends upon the uncorroborated evidence of an accomplice; but they are not to be instructed, as matter of law, that the prisoner in such case must be acquitted. Lord Ellenborough thus expressed his views upon this question: 'No one,' said he, 'can seriously doubt that a conviction is legal, though it proceed upon the evidence of an accomplice alone. Judges, in their discretion, will advise a jury not to believe an accomplice unless he is confirmed, or only in so far as he is confirmed; but if he is believed, his testimony is, unquestionably, sufficient to establish the facts to which he deposes. It is allowed that he is a competent witness, and the consequence is inevitable that if credit is given to his evidence, it requires no confirmation from another witness."" Rex v. Jones, 2 Campb. 132. See Rex v. Atwood, 1 Leach, C. C. 464; People v. Davis, 21 Wend. 309; Haskins v. People, 16 N. Y. 344; 2 Colby, Crim. L. 214.

In criminal trials, where the testimony of accomplices has been resorted to to procure conviction, it has been customary for judges presiding at the trial to instruct juries that it was ordinarily unsafe to convict upon the unsupported and uncorroborated evidence of the accomplice. Such instructions, however, have been merely advisory. Haskins v. People, supra.

$322. Caution against the Infirmities of this Evidence.As a matter of theory, one charged with crime may be convicted

upon the evidence of an accomplice alone. As a matter of practice, courts caution juries against reliance upon the testimony of accomplices, unless corroborated by independent evidence. Roberts v. People, 11 Colo. 213; Whart. Crim. Ev. § 441.

"An accomplice is an admissible witness; but, as he comes before the court under suspicious circumstances, his testimony ought to be received with great caution. As a general rule, it will be unsafe to convict upon the testimony of an accomplice alone, uncorroborated by other testimony. It ought to be corroborated in material facts connecting the prisoners, and each of them with the crime; but the degree of credit to be given to the testimony of an accomplice, and the amount of corroboration necessary to render it satisfactory, are matters to be considered and determined by the jury." State v. Maney, 54 Conn. 178.

The rule of law is, that a jury may convict on the evidence of an accomplice alone, if they believe it; but it is usual for the courts to say to the jury that they should not do it, and that they should have corroboration of his testimony before they would convict. Carroll v. Com. 84 Pa. 107.

In People v. Noelke, 29 Hun, 461; 1 N. Y. Crim. Rep. 252, it was held that one purchasing a lottery ticket for the purpose of showing that the vendor was engaged in a violation of the statute was not an accomplice with the person from whom the ticket was purchased. See also People v. Noelke, 94 N. Y. 137; 1 N. Y. Crim. Rep. 495, 46 Am. Rep. 128, and Com. v. Willard, 22 Pick. 476.

In the case of People v. Smith, 28 Hun, 626, 1 N. Y. Crim. Rep. 72, the defendant was convicted of a violation of the excise law in selling beer in quantities of less than five gallons without a license, and all the evidence under which she was convicted was given by the person to whom the sale was made. It was objected that, under section 397 of the Code of Criminal Procedure, prohibiting a conviction upon the testimony of an accomplice, unless he be corroborated by such other evidence as tends to connect the defendant with the commission of the crime, the prisoner could not be convicted upon the uncorroborated testimony of the witness. This objection was held to be untenable by the general term of this department, it being determined that as the excise law made only the person selling, and not the purchaser, guilty of a criminal act, the purchaser was not an accomplice within the

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