Commonwealth v. Savory

Dewey, J. We have not deemed it necessary to review the many supposed conflicting cases, as to the rule of law allowing questions to be put on cross-examination to a witness which have a direct tendency to disgrace him, or degrade his character. So far as any questions were asked here, the answers to which might expose the witness to a criminal prosecution, as to such, they were not required to be answered for that reason. But the answer to the whole of the proposed inquiry that was refused is, that it was wholly collateral, and had no direct bearing upon the issue, and being so, the limitation to the cross-examination as to inquiries, as to new and entirely collateral matters, must be left to the sound discretion of the presiding judge, as a matter much more appropriately to be settled by him in view of the state of the case, the course and extent of the cross-examination, and its tendency to throw additional light upon the case. This was the view of this matter taken by the court in Commonwealth v. Shaw, 4 Cush. 593, and we see no reason for departing from it. Considering the present case as falling within the principle there stated, the court are of opinion that the ruling of the presiding judge, limiting the cross-examination in the manner he did, furnishes no ground for exceptions. 2. The further question as to the ruling of the court as to what constitutes a corroboration of an accomplice used as a witness, is one of more difficulty. The usual cases of corroboration have been those where some portion of the particular story, or detached narration of the witness has been confirmed by other testimony, showing the truth of such portion, and thus rendering it more probable that the remaining part is the truth. The presiding judge here went further, [538] and held that the fact of the possession of the stolen property by the defendant, though that was not' one of the facts stated by the accomplice, yet if that fact was clearly proved by other reliable evidence, might be regarded by the jury as a material fact, and if, in the judgment of the jury, the possession thus shown to have been in the defendant did corroborate the accomplice, the jury might, if they fully believed the accomplice, find the defendant guilty upon the evidence of the accomplice thus corroborated, but the matter was wholly for the jury as to the corroboration, and what credit they would give the accomplice. Certainly, this whole subject of the effect that may be given to the testimony of an accomplice is left in a state of some embarrassment and doubt. It is the language of the books and of adjudicated cases, that an accomplice is a competent witness, and if his evidence is believed by the jury, it is competent for them to convict upon it, though unsupported by any other proof. 1 Phil. Ev. 34; Atwood's Case, 1 Leach, (4th ed.) 464; Macnally on Ev. 197; Commonwealth v. Bosworth, 22 Pick. 397. But it is also often said further that the court will advise a jury not to convict unless there is some corroborating evidence, or, as it is stated in Bosworth’s case, just cited, “ where there is no evidence other than the uncorroborated testimony of the accomplice.” It seems, however, that it has been held that this was a matter of discretion with the presiding judge, and not a legal duty, as was stated in the case of King v. Durham, decided at the Old Bailey, 1787, where the court say “ that the practice of rejecting an unsupported accomplice is rather a matter of discretion with the court, than a rule of law.” Macnally on Ev. 199. Giving effect to this principle fully would remove all ground for any exceptions in the present case. But it seems in practice to have been considered that if the presiding judge erred in admitting evidence as corrobatory, which was not properly such, it was proper to grant a new trial, as was done in the case of Commonwealth v. Bosworth, 22 Pick. 397. In that case, however, the corroborative evidence was directly confirmatory of a portion of the evidence of the accomplice, but it was of a portion of it, [539] that was a matter of public notoriety and observation, and the confirmation of it did not, in the opinion of the court, at all add strength to the testimony of the accomplice on other parts of the case, and the question arose upon the admission of such corroborative evidence. In one of the present cases, that of receiving stolen goods, the property of Sarah II. Works, we are brought to the consideration of a different question, whether it is competent for a jury to convict upon the testimony of an accomplice, with no corroboration by other witnesses of any particular portion of the statement of the accomplice, but a corroboration resulting from the proof of facts not stated by the accomplice, but which, if shown, tend to confirm the statement made by the accomplice, as by showing the goods found in the possession of the defendant, at such time and under such circumstances as would naturally occur if he had received them, knowing them to be stolen. It is true, that here is no corroboration of any particular part of the story of the accomplice. But may it not be equally effectual as a corroboration, and ought it not to be so considered, if some independent fact not stated by the accomplice, is shown by other evidence, and which has a strong bearing upon the probable guilt of the accused; as, for instance, evidence showing a state of things in relation to the prisoner, such as would be naturally expected to exist, if the evidence of the accomplice was true, and not likely to have existed if the same was false. It is to be remembered that the present case is not one arising upon any question of the admission of evidence for the purpose of corroboration. The question arises upon the instructions to the jury; whether it was not competent for them, upon the testimony of the accomplice, and the additional testimony of material facts, to find the defendant guilty. Taking the instructions in the guarded form they were given to the jury, and with the qualifications there stated, there seems to be no ground for disturbing the verdict. See United States v. Kessler, Bald. 22. Exceptions overruled.