Where, at the close of the case for the Crown, very slight evidence appears against one of two prisoners jointly indicted, the other cannot of right claim that the case of the former be submitted separately to the jury; but this is discretionary with the Judge. The question. whether the Judge has properly exercised his discretion, or not, cannot be reserved as a point for the consideration of the Court. (a) Whenever a co-defendant is ordered to be acquitted, in anticipation of the general verdict, his credit is left to the jury, how strong soever the bias on his mind may be. (b) If the Judge refused to direct an acquittal, for the purpose of evidence of the co-defendant against whom there appeared neither legal proof, nor moral implication, a verdict against the other prisoner would be set aside. (c) Where two prisoners are jointly indicted for felony, and plead not guilty, but one only is given in charge to the jury, the other is an admissible witness against the one on trial, although the plea of not guilty remains on the record undisposed of; the witness not having been acquitted or convicted, and no nolle prosequi having been entered. (d) It is conceived that this decision will hold in Ontario at least, as the evidence Act here, Con. Stats. U. C. c. 32, s. 18, only protects a party in criminal proceedings, from giving evidence for or against himself. It is also unaffected, by the (Ont.) 33 Vic., c. 13. Notwithstanding 32 & 33 Vic., c. 29, ss. 62 & 63, a prisoner jointly indicted with another cannot, after they have been given in charge to the jury, be called as a (a) Reg. v. Hambly, 16 U. C. Q. B. 617. (b) Reg. v. Kennedy, 2 Thomson, 219-20, per Wilkins, J. (c) Ib. 220, per Wilkins, J. (d) Winsor v. Reg., L. R. 1 Q. B. 390 (ex chr.); 35 L. J. (M. C.) 161. witness for the other, without having been either acquitted or convicted or a nolle prosequi entered. (a) Parties separately indicted for perjury alleged to have been committed at one, and the same hearing, can be witnesses for each other. (b) Where four prisoners were indicted together for robbery, and one severed, in his challenges, from the other three, who were tried first :-Held, that the former, although not actually upon his trial, after pleading not guilty, and before trial or judgment, was a competent witness on their behalf. (c) He would also be competent for the Crown. (d) It would seem that, in any case, one prisoner, whether he pleads guilty or not guilty, may, if he severs in his challenges from the other prisoners, and the Crown elects to proceed against the others first, so that he is not on trial with them, be called for the prosecution; and this on the ordinary principles of the common law. (e) In such cases, however, it might be advisable, in order to ensure the greatest possible amount of truthfulness in the person coming to give evidence, to take a verdict of not guilty, as to him, or to have his plea of not guilty withdrawn, and a plea of guilty taken and sentence passed, so that the witness may give his evidence with a mind free from all the corrupt influences which the fear of impending punishment, and the desire to obtain immunity to himself at the expense of the prisoner, might otherwise produce. (f) This course cannot, however, be (a) Reg. v. Payne, L. R. 1 C. C. R. 349. (d) Ib. 500, per Hagarty, J. (e) Ib. 500, et seq. per Hagarty, J.; see Reg. v. King, 1 Cox, C. C. 232; Reg. v. George, C. & Mar. 111; Reg. v. Williams, 1 Cox, C. C. 289; Reg. v. Stewart, ib. 174; Reg. v. Gerber, 1 Temp. & Mew. 647; Reg. v. Clouter, 8 Cox. C. C. 237. (f) Winsor v. Reg. L. R. 1 Q. B. 312, per Cockburn, C. J. held absolutely necessary, since the decision of this case in the Exchequer Chamber. As to the competency of witnesses, a child of any age, if capable of distinguishing between good and evil, may be admitted to give evidence. A child of six years of age was examined-on being interrogated by the Judge, and making answers that there was a God, that people would be punished in hell who did not speak the truth, and that it was a sin to tell a falsehood under oath, although he stated he did not know what an oath was. (a) On a trial for murder, an Indian witness was offered, and, on his examination by the Judge, it appeared that he had a full sense of the obligation to speak the truth, but he was not a Christian, and had no knowledge of any ceremony, in use among his tribe, binding a person to speak the truth or imprecating punishment upon himself if he asserted what was false. It appeared also that he and his tribe believed in a future state, and in a supreme being who created all things and in a future state of reward and punishment according to their conduct in this life. He was then sworn in the ordinary way on the New Testament, and it was held that his evidence was admissible. (b) If the witness had belonged to any nation or tribe that had in use among them any particular ceremony, which was understood to bind them to speak the truth, however strange, and fantastic the ceremony might be, it would have been indispensable that the witness should have been sworn according to such ceremony; because all should be done, that can be done, to touch the conscience of the witness according to his notions, however superstitious they may be. (c) (a) Reg. v. Berube, 3 L. C. R. 212. (b) Reg. v. Pah-mah-gay, 20 U. C. Q. B. 195. (c) Ib. 198, per Robinson, C. J. The defendant, on his trial upon an indictment, cannot give evidence for himself, nor can his wife be admitted as a witness for him. (a) The wife of any one of several prisoners, jointly indicted, stands in the same position with respect to the admissibility of her evidence as her husband. A joint indictment was preferred against T. and D., for stealing fifty-six pounds of onions the property of their master, and against H. for receiving the same, knowing them to be stolen. The wife of H. was offered as a wit ness for the prisoners, T. and D.:-Held, that her evidence was inadmissible. (b) Where A. and B. were tried together, on a joint indictment for assault on a peace officer, and the wife of A. was offered, as a witness, to disprove the charge against B.:-Held, that her evidence was properly rejected, but had the husband not been on his trial, she would have been a competent witness; (c) quare whether a witness can be called to give evidence for one purpose only, and, whether, if examined at all, it must be upon all matters in the record. (d) The prisoner was indicted in one count, for obtaining money from trustees of a Savings Bank, by pretending that a document produced to the bank by E., the wife of T., had been filled up with his authority; and, in another count, for a conspiracy between the prisoner and E., to cheat the bank, but E. was not indicted. The evidence of T. having been received in support of the prosecution, the prisoner was acquitted on the count for conspiracy, and convicted on the other:-Held, that the evidence of T. was properly received and the conviction good. (e) (a) Reg. v. Humphreys, 9 U. C. Q. B. 337; and see Reg. v. Madden, 14 U. C. B. 588. (b) Reg. v. Thompson, L. R. 1 C. C. R. 377. (c) Reg. v. Thompson, 2 Hannay, 71. (d) Ib. (e) Reg. v. Halliday, 7 U. C. L. J. 51; Bell, 257; 29 L. J. (M. C.) 148. A conviction, on the evidence of an accomplice would be good in law, if the Judge directed the attention of the jury to the rule of practice, by which the testimony of the accomplice requires corroboration as to the identity of the accused. (a) It seems the conviction would be good, if the Judge did not act on this rule, (b) and the testimony of the accomplice were uncorroborated. (c) Judges, in their discretion, will advise a jury not to convict a prisoner, upon the testimony of an accomplice alone without corroboration. The practice of giving such advice is now so general that its omission would be deemed a neglect of duty on the part of the Judge.(d) The direction of the Judge should be so strongly against the testimony, if uncorroborated, as almost to amount to a direction to acquit. (e) In Reg. v. Seddons, (f) the jury were told that the testimony of the accomplice was not sufficiently corroborated to warrant a conviction, whereupon they came into Court stating that they thought the prisoner guilty, but that he ought not to be convicted on the evidence. They were then told that they ought to acquit; but, after a short interval, they returned a verdict of guilty. Before recording their finding, the presiding Judge recommended them not to convict on the evidence, saying, however, they could do so if they thought proper. They nevertheless adhered to their verdict, and the Court held that there was neither error, nor misconduct in fact, nor in law. (a) Re R. B. Caldwell, 6 C. L. J. N. S. 228; 5 U. C. P. R. 221, per A. Wilson, J.; Reg. v. Seddons, 16 U. C. C. P. 389. (b) Reg. v. Charlesworth, 9 U. C. L. J. 53, per Blackburn, J. (c) Reg. v. Fellowes, 19 U. C. Q. B. 51, et seq. per Robinson, C. J.: Reg. v. Beckwith, 8 U. C. C. P. 274. (d) Reg. v. Beckwith, supra, 279, per Draper, C. J. |