State v. Wolcott

Church, Ch. J. Under the motion in arrest of judgment, in this case, the claim of the prisoners is, First, that while the indictment on which they have been found guilty, was under investigation, by the grand-jury, they were confined in the state’s prison, had no notice of the proceedings against them, and no opportunity to be present, to confront or examine witnesses produced against them. The practice in this state, so far as we are informed, from the earliest times, has been, if the accused be in custody of the court, for the grand-jury to cause him to be brought before them, at the hearing, and perhaps also, if he is out on bail and desires to be present; but this is done without any other order or interference of the court than is expressed by the court to the grand-jury in the charge. We have not known the practice to be extended further. It is claimed now, that every one accused of crime of which a grand-jury takes cognizance, has a constitutional right to be present with the grand-jury, during their investigation. The bill of rights in our constitution declares, that “in all criminal prosecutions, the accused shall have a right to be heard by himself and by counsel, to demand the nature and cause of the accusation, to be confronted by the witnesses against him, and to have compulsory process to obtain witnesses in his favour,” &c. Stat. 28. § 9. This provision has never been understood to apply to grand-jury enquiries: on the contrary, the rule in Connecticut, so far back at least as the time of Peter Lung’s case, in 1815, has been in conflict with this claim of the prisoners. Then this court adopted and published a rule, in the form of a charge to the grand-jury, by which counsel were not permitted to be present before them, nor any witnesses on the part of the accused; and this has been followed ever since; shewing conclusively, that the privilege thus conferred by the con [280] stitution, has been considered as extending only to trials before petit juries. Nor have we any statute conferring the right now claimed. Grand-juries have a right to investigate offences, and present bills of indictment against persons at large, as well as those in custody or on bail. They have a right to originate charges against offenders, without fore-warning them of their proceedings against them. A different practice may have been followed in England, and in our sister states. Ours has been effective to secure the rights of our citizens, and has been so long pursued as a safe one, as to forbid courts to change the law, without legislative sanction. A second objection, under the motion in arrest, is, that William A. Dickerman, who was an accomplice of the prisoners, was admitted, without permission of the court, to testify against them before the grand-jury. We do not understand by this, that he went before the grand-jury, in violation of any order, or usual practice of the court. It is not usual for the court, without special reasons, suggested on application, to give directions regarding witnesses to be called before the grand-jury. The prosecuting attorneys send such as they believe to be necessary. And whether the witness, in such case, be an accomplice or not, can make no difference. Accomplices are competent and admissible witnesses; and especially, since our present law, which has abolished both interest and infamy, as tests of competency. This objection was made in Dr. Dodd’s case, but was unavailing. 1 Leach’s Cr. Cas. 185. 1 Chitt. Crim. Law, 319. Grand-juries do not try, but enquire; they do not condemn. but only accuse; and it would be found intolerable, in practice, to confine them to technical rules of evidence. Besides, we think these objections came too late. The grounds of them should be treated as waived, by the general plea of not guilty, and proceeding to trial, without a suggestion of them by the accused. Under the motion for a new trial, the first claim is, that the testimony of Thomas and of Ellis should have been rejected. Dickerman had testified, that, a little while before the fire, he and the prisoners, at a certain place, had been informed by Thomas, that the hose of the fire engine was at [281] Boston, to be repaired; and that this was the reason why the fire was set, at the time it was. Thomas was called to confirm Dickerman, as to the time and subject of this conversation. It shewed a privity and connexion, and a conspiracy, between Dickerman and the prisoners, and a reasonable motive for the commission of the deed, at a time when it would prove effective; that they knew the engine could not then be worked effectively, to extinguish the fire; and that their information was derived from this source. So, as to the testimony of Ellis. It proved, that Dickerman had knowledge of a fact connecting these prisoners with Ellis, which he could have derived only from them; that he, Dickerman, was their confidant, to whom they imparted their plans and their movements, as he had testified; and which, in part, at least, were shewn to be true, by the testimony of Ellis; and thus, in a degree, it corroborated Dickerman, as to what he had sworn of the fact, that Elisha M. Wolcott was at Hartford, at the time of the fire, and the reason of it. Besides, the conversation between Ellis and Elisha, was proper to be proved, to show his conduct and his answers, when conversing on the subject of the fire, and the persons suspected. The testimony of Mrs. Dickerman was very direct and positive, not only as corroborative of her husband’s testimony, but as charging the prisoners from their own acts and conversations. That her husband was an accomplice, or even that she was an accomplice herself, would not disqualify her from testifying; and the credibility of her story was for the jury to consider. It was important to shew a combination or conspiracy between Dickerman and the Wolcotts; and to do this, as in other cases, it is frequently necessary to resort to circumstances in themselves of apparently little consequence, which, when brought together, are very satisfactory for this purpose. Another ground for a new trial is, that the judge refused to instruct the jury, that the testimony of Thomas and Ellis and of Mrs. Dickerman was not legally sufficient to corroborate Dickerman, the accomplice; and without corroboration, there could be no conviction of the principals. The testimony of an accomplice is admissible, and of course, to [282] some extent, is presumed to be credible. The law would not proof, which it had decided, a priori, should not be believed, when admitted. If credible at all, it may be sufficiently so, to produce belief and conviction; and this is not unfrequentlv true in fact. The degree of credit which is due to an accomplice, is a matter exclusively for the jury to say. Rosc. Crim. Ev. 120. 1 Greenl. Ev. 380. Commonwealth v. Bosworth, 22 Pick. 397. Courts frequently do and ought to advise caution in reposing confidence in the naked testimony of an accomplice; but this is rather in the exercise of a proper judicial discretion, than because the law demands it. What will amount to a corroboration, has been a matter of some discussion in the books. Any evidence, aside from the testimony of the accomplice himself or connected with it, which proves reasonably, not merely that the crime charged has been committed, but that the accused participated in it, may satisfy the mind. And frequently facts of no great prominence will be sufficient to do this. In the present case, the judge went very fully and fairly into this subject with the jury; and it is difficult to say, what more favourable charge for the accused could have been given, unless the judge had taken upon himself to say, that Dickerman was in no respect corroborated. We think that neither the motion in arrest of judgment, nor the motion for a new trial, should prevail; and both are denied. In this opinion the other Judges concurred. Motion in arrest overruled; —— for a new trial, denied.