#### The Commonwealth v. Dabney.*

June 1842.

Criminal Law—Witnesses†—Accomplice—Right to Pardon.—Though a particeps criminis, called as a witness for the commonwealth on the trial of his accomplice, voluntarily give evidence, and fully, candidly and impartially disclose all the circumstances attending the transaction, as well those which involve his own guilt as those which involve the guilt o! others, he will yet have no right to a pardon for his own guilt, and therefore no right to demand a continuance of his cause until he can have an opportunity to apply to the executive for such pardon.

Case adjourned from the circuit superior court for the county of Henrico and city of Richmond.

William B. Dabney, late the first teller of the bank of Virginia, was indicted in the said circuit court, upon the statute of Eebruary 24, 1820 (Suppl. to Rev. Code, ch. 223, *\*2, p. 278)"j for felony in embezzling and fraudulently converting to his own use 4000 dollars of the money and bank notes of the bank, placed under his care and management by virtue of his office aforesaid. Having been admitted to bail, he appeared in court at May term 1842 in discharge of his recognizance; and the attorney for the commonwealth desiring to put him on trial on the said ir.dictment, he moved *the court to postpone the trial, in order that he might have an opportunity, at the proper time, to apply to the executive for a pardon, being advised that such application could not properly be made to the executive until certain indictments depending in the same court against Benjamin W. Green were finally disposed of. The record sent to the general court contained the following statement of the grounds upon which this motion was made.

While the prisoner acted as first teller of the bank of Virginia., during the years 1838, 1839, and 1840, a defalcation to a large amount, between 500,000 and 600,000 dollars, had taken place in his department of the bank, and the prisoner apprehending prosecution for the default had left his situation in the bank on the--- day of April 1840, and fled from the commonwealth to places beyond the limits of the United States, leaving his wife and children at their residence in Richmond. Having borne a high character for integrity during his whole life, and having seen a publication in the Richmond Whig, written a few days after his flight, and purporting to have been made by his friends and connexions, inviting him to return, to surrender himself to the law, and to make a full disclosure of all the circumstances attending the default, and approving that advice, he resolved to follow it, and thereupon wrote to John H. Pleasants the editor of the Whig, from Eewiston in the state of New York, a letter dated the 27th of April 1840, indicating that intention. About the same time a letter was written to the prisoner by John Brockenbrough the president of the bank of Virginia, urging his return, recommending a full and fair disclosure of all the transactions connected with the default, and suggesting that such a course would lead to favour towards him. This letter, accompanied by one from John Wight to the prisoner, strongly advising the same course, was despatched by a special messenger, R. C. Williamson, *and delivered to the prisoner at Eewiston in New York.* Whereupon the prisoner immediately and voluntarily returned with Williamson to Richmond, went before the officers of the bank, voluntarily explained to them the transactions connected with the default, and surrendered himself to the officers of the law. He was thereupon arrested, and gave bail to appear before the mayor of the city of Richmond, to undergo his examination on the--day of May. He accordingly appeared, but the examination was postponed from time to time, and his recognizances renewed, until the 17th of June 1840, when he underwent his examination before the mayor, and was committed for trial before the magistrates of the city at a called court to be held on the 22d of June, for his examination, first, on the charge of embezzling and fraudulently converting to his own use, vs'hile *432teller of the bank, the money and bank notes belonging to the bank and entrusted to his keeping; secondly, for permitting Benjamin W. Green fraudulently to embezzle and convert to his use the money and bank notes of the bank; and thirdfy, for stealing the money and bank notes of the bank. The prisoner was accordingly brought before the called court, and that court, having heard the evidence, remanded him for trial before the circuit court upon the first two charges, and a nolle prosequi was entered by the attorney for the commonwealth, by the advice of the court, as to the third charge, that is, the charge of larceny.

Before the prisoner returned to Richmond as aforesaid, an examination of the first teller’s vault and drawers at the bank had ascertained the amount of the deficiency of tiie money of1 the bank entrusted to the prisoner, and that checks of 'B. W. Green and others, to an amount nearly equal to the amount of said deficiency, were found in the said vault and drawers; and the said ^Benjamin W. Green had been arrested upon a charge of felony, as the party who had fraudulently and feloniously obtained and converted to his own use the greater part of the money and notes aforesaid, and was under- trial for these charges before an examining court for the city of Richmond, during the period that Dabney’s examination was postponed from time to time as aforesaid before the mayor. Upon this examination of Green, Dabney was called upon as a, witness to give evidence on the part of the commonwealth. Before he was sworn, he was informed by the court, at the request of the attorney for the commonwealth, that he was not bound to give any evidence in that case that would criminate himself, and that if he did give evidence, he must do so without any expectation of favour or that he would thereupon acquire any right to pardon. The prisoner thereupon declared he had been advised by his counsel, that though he was not bound to give evidence in the cause, yet if he did give it, he should tell the whole truth; and he was willing to give evidence and to tell the whole truth, whether it involved his own guilt or the guilt of others. He was thereupon sworn as a witness to give evidence on behalf of the commonwealth, and gave evidence in detail as to all the circumstances which had come to his knowledge touching the default aforesaid, from the period when an overdraft of Green & Merrill had been made known to him about the -day of October 1838, till the said Dabney finally left the bank on the--day of April 1840. Among other things, he gave evidence in much detail of a great variety of occasions on which he had permitted B. W. Green to withdraw from the bank, upon checks which were not good, and which both he (Dabney) and Green knew were not good, first smaller apd afterwards much larger sums of money, till Green’s overdraft amounted to the whole sum deficient, except about 4900 dollars. That Green’s first overdrafts were made ^without Dabney’s knowledge, and were afterwards concealed by him under the supposition that they had arisen from the mistake of an absent officer, and would be explained when he returned to the bank. That Green’s earlier overdrafts made with Dabney’s knowledge were made under a promise by Green, and an expectation by Dabney, that they would be soon returned: that all Green’s overdrafts made with Dabney’s knowledge were made under strong assurances that they should be repaid ; and towards the latter part of the overdrawing, he repeatedly assured Dabney that the repayment should be secured by a lien on property, and made some progress in preparing the securities. Dabney testified that in relation to these overdrafts permitted by him to Green, he had no interest whatever, no part of them being intended from him or for his use: that he never received from Green any consideration whatsoever for the indulgence: that it is true he received from him some small presents, but never regarded them as given in consideration of services rendered: and that when he had been ruined by the long course of indulgence in favour of Green, and found himself obliged to leave the bank, he informed Green that he had nothing to pay a debt which he owed to his two sisters, of about 1000 dollars each, and that Green promised him he would transfer to each of his sisters ten shares of the stock of the Dover coal mining company, which he afterwards did accordingly, though they have since surrendered it, after they knew the source from wjiich it came. As to the sum of 4000 dollars mentioned in this indictment, Dabney testified, that holding certain valid securities which he had obtained from the sale of his farm, on which he expected to' raise money enough to serve his immediate demands, but having been disappointed in the efforts which he had1 made for that purpose, and being afraid to remain longer in Richmond lest his default should be discovered before he left*it, he took out of his department of the bank, of the money entrusted to his care, about the sum of 4000 dollars in bank notes and specie, and left at the-same time in the place of it the valid securities aforesaid, to a greater amount than the money so taken, duly endorsed by him, with the intent that the bank should take-possession of them, collect them, and indemnify itself for the money so taken. (These securities have been since actually-collected, and the money received, by the bank.) The money so taken by Dabney was intended to be applied to his own use. And as to the sum of 900 dollars, the residue of the sum of 4900 dollars referred to in the preceding part of this statement, Dabney testified that it arose from a check drawn by the mother bank at Richmond on the branch bank at Uynchburg, by mistake-for 1000 dollars, when it should have been, drawn for 100 dollars.

*433When Dabney was remanded for trial before the circuit court, the called court refused him bail. But upon a writ of habeas corpus returnable to the general court, and upon proof of the facts herein before stated, that court admitted him to bail.* He has since been on bail from time to time until the present time,, and has uniformly appeared in discharge of his recognizance. He has been indicted rtpon six indictments in this court, viz. that which has this day been called for trial, and five others; to all of which he is now willing to admit upon the record the facts such as he has testified to them, and he does so admit them.

Benjamin W. Green was also indicted upon 23 indictments, for imputed offences in obtaining the money aforesaid, which he had been permitted by Dabney to draw out of the bank. On one of them he was tried at the last fall term of this court, upon which trial Dabney was called on behalf of the commonwealth to give evidence, and after a charge in relation to his testimony *similar to that given by the called court on his examination as a witness there, did give evidence substantially similar to that which was given by him before the examining court. Upon that trial Green was acquitted, and he was afterwards admitted to bail by the general court.† All the rest of the indictments against Green yet remain undisposed of.

The prisoner proposes to shew to this court, that his evidence before Green’s called court, where he was examined and cross-examined for about a fortnight, was full, impartial, and perfectly satisfactory both to the court and to the attorney for the commonwealth prosecuting there: and when it shall be proper for him to present his case before the executive, he will ask this court, and the attorney for the commonwealth here, to certify their opinions of the fulness, the fairness, the integrity and the impartiality of his testimony here.

Whereupon the arguments of counsel on behalf of the prisoner and of the commonwealth having been heard, and the court being of opinion that the questions of law upon which this motion turns are novel and difficult, doth, with the consent of the prisoner, adjourn this case to the general court, and ask their opinion upon the following questions:

1. If a particeps criminis, on the trial of one of the parties to the crime, called as a witness on the part of the commonwealth, voluntarily give evidence, and fully, candidly and impartially disclose all the circumstances attending the transaction, as well those which involve his own guilt as those which involve the guilt of others, will he have an equitable title, or any title, to pardon for his own guilt, and will he have a right to demand from this court a continuance of his cause until he can have a fair opportunity to apply to the executive for that pardon?

*2. Is the english law, such as it is expounded by the twelve judges of England 'in the case of The king v. Rudd (reported in Cowper p. 332, and Leach’s C. L. p. 115), law in Virginia?

3. VS hen an accomplice is examined as a witness on behalf of the commonwealth against a particeps criminis, and in the course of a full and fair narrative of his evidence, and as an appropriate explanation thereof, he discloses a felony committed by himself in which the prisoner has not participated, such for example as may be the embezzling of 4000 dollars here charged upon Dabney, in which he does not allege that Green had any participation, has the witness so disclosing a felony any equitable claim to pardon under the law of England, or the law of this state? or any claim to have his trial postponed in ordér that he may apply for a pardon?

4. What judgment should be rendered on the motion now submitted? Ought the case to be continued until after the other indictments against Green are disposed of, or until the attorney prosecuting for the commonwealth shall dismiss Dabney as a witness, or until the prisoner shall have an opportunity to apply to the executive for a pardon prior to the trial of Green upon the other indictments? or ought the motion to be overruled?

The cause was argued here by the attorney general for the commonwealth, and Johnson, Scott and Stanard for the accused.

*

For monographic note on Pardons, see end of case.

†

 Criminal Law—Witnesses—Approvers —In Oliver v. Com., *77*Va. 592, the court said: "The English doctrines relating to the admission of approvers seem never to have become incorporated into the laws of this state, and the ancient practice in England, which was confined to capital cases, has been long disused. 4 Bl. Comm. 330; 1 Bishop on Crim. Procedure, sec. 1072 *et sec.; Dabney’s Case.*1 *Rob. Rep.*696.”

*See foot-note*to Byrd v. Com., 3 Va. Cas. 490.

*

Tlie three letters above mentioned were inserted in the record, but it is considered unnecessary to introduce them in this report.—Note in Original Edition.

*

At June term 1840.

†

At December term 1841. See Green v. Commonwealth, 11 Leigh 677.—Note in Original Edition.

LEIGH, J.

The counsel for Dabney in this court have contended that according to Rudd’s case, 1 Leach’s Cro. Ca. 115, an accomplice, who has been received by the court to give evidence against his associates, and who has fully and fairly given testimony against them, has a right to the recommendation of the court to the mercy of the executive, and a right to the pardon of the executive.

*In the case above referred to, lord Mansfield uses this language—“There is, besides, a practice which does not give a legal right; a‘nd that is, where an accomplice, having made a full and fair confession of the whole truth, is in consequence thereof admitted as a witness for the crown, and his evidence is afterwards made use of to convict the other offenders. If in that case he acts fairly and openly and discovers the whole truth, though he is not entitled of right to a pardon, yet the usage, the lenity and the practice of the court is to stop the prosecution against him, he having an equitable title to the recommendation of the court to the king’s mercy.” By this opinion the right to the pardon is denied to be a legal right, and is said to be a mere equitable one. It would seem then, that even in England this right to the recommendation of the court can hardly be said to be a right secured by the common law, but is a mere favour which the crown had determined to extend to accomplices. And we are the more inclined to consider this the correct view of the ques*434tion, as this doctrine of the right of an accomplice to the recommendation of the court is to be found in none of the older writers on the common law. If this be the correct opinion, then this right of an accomplice never was introduced into the laws of this state.

But if it were established that this right of an accomplice was a part of the common law, we should still be of opinion that it never was a .part of the law of this state: for no accomplice can, according to the constitution of our courts, be so received to give evidence as to entitle him to this right of pardon. According to the authorities, he must make a full confession of the whole truth. And according to the same authorities, neither, the committing justice nor the prosecutor, nor even the attorney general, can so receive him; the power to receive him being given to the court alone. In England the accused is always ex-amiued by ^the committing magistrate, who reduces this examination to writing, together with the testimony of the witnesses. In this examination an accomplice may make a full and fair confession of the whole truth, before a person authorized to receive it. But in this state the accused is never examined, and we do not see in what manner this previous con.fession of the whole truth is to be made. The committing: magistrate and the prosecutor are unauthorized by any law to take it; nor has the'court any such authority. But admitting that the court has the right, where and in what manner is the confession to be made? Is the judge to go to the jail, or to send for the accomplice to his private room, and receive his confession in secret? This would be contrary to our practice, which has always been to administer justice openly and in public. Or is the accomplice to be brought into court to make his full confession openly and publicly? This would be unjust to him: for the court may not receive him as a witness, and his confession in open court, perhaps in the presence of those who may afterwards be called upon to try him, might greatly prejudice his case. It would therefore seem that no mode is provided by our laws, in which the full confession, required of an accomplice by the practice of the courts in England before he will be permitted to give evidence against his associates, can be made. But if this difficulty were removed, no mode is pointed out by our laws, for procuring the testimony to enable the court to determine whether the accomplice ought or ought not to be received as a witness. According to the authorities cited, the admission in England of an accomplice to give evidence puts it in his power to entitle himself to a pardon. The permission, then, to give testimony is in effect the grant of the pardon. And surely the court ought to have all the evidence in the case, as well in respect to the accomplice as his associates, to enable it to decide whether it *would be proper, in the particular case, to exercise the power of pardoning: otherwise it would often happen that the most guilty would secure his pardon, simply by giving evidence against others who had been led into guilt by the .witness himself. It is probable that in England all the evidence is before the court, which may thus have the means of ascertaining the propriety of receiving the accomplice as a witness. But in this state, according to our present mode of proceeding, the evidence never is and never can be before the court. Therefore, if the right of an accomplice to a pardon were fully established in England, we should yet deny that the same right existed here.

We think, too, that the legislature, by enacting that “approvers shall never be admitted in any case whatsoever,” (1 Rev. Code, ch. 169, | 59, p. 614,) has manifested its disapprobation of holding out impunity to an accomplice, as an inducement to him to become a witness against his associates. Indeed, some of the judges are of opinion that this law prohibits the offering of any such indemnity to an accomplice. But others of them think that the conditional right to pardon now contended for would not have been taken away by that law, if such right had existed at the time of the enactment. A majority of the court, however, are of opinion that the act in question evinces the legislative disapprobation of the principle now contended for in behalf of the accomplice. What was the objection to permitting an accomplice to become an approver? Certainly, that thereby he might be tempted to screen himself by giving false testimony against others. The right to pardon now insisted on holds out the same sort of temptation, though in a less objectionable manner. And as the legislature has manifested its disapprobation of holding out such a temptation in case the witness appeared in the character of an approver, we think it may fairly be inferred that it would equally disapprove of *holding out a temptation of a like kind where the witness appeared in the character of an accomplice. We think, too, that the act which prohibits the using against any person facts stated by him in his examination as a- witness against another, furnishes some evidence, though perhaps not very strong evidence, that the legislature did not, at the passage of that act, regard the right, now contended for in behalf of the accomplice, as existing under our law. And we are of opinion that our law acknowledges no such right.

We are the better satisfied with this opinion, from the fact that the right has been established by no decision in our courts; and also from the fact that it has, as we firmly believe, never before been asserted or even heard of in our courts. Indeed, we regard Byrd’s case, 2 Va. Cas. 490, as a pretty strong authority against the supposed right. We willingly admit that the point directly decided in that case was, that an accomplice is a competent witness. But the opinion declares also, that the accomplice is not exonerated from punish*435ment; that he is not entitled to a pardon in case he succeed in convicting a fellow prisoner, nor is he subjected to punishment in consequence of his failure; that in both cases his acquittal or conviction will depend upon the evidence adduced on his own trial. We cannot believe that this broad denial of an exoneration from punishment, and of the right to pardon, would have been thus unconditionally stated, if the court had not been satisfied that the right now asserted had no existence; especially as Rudd’s case appears to have been before the court. It is the daily practice to receive accomplices as witnesses; in many instances they have been put upon their trial after giving evidence against their associates, and in some instances they have been convicted: yet in no one instance have counsel claimed, or the court extended to the witness, the right now asserted. How is this to be accounted for? Not from ^ignorance in the profession, (for Rudd’s case has been for a long time generally known,) but from the universal opinion of the bench and bar that no such right existed. And we cannot readily admit that the whole profession has been, for such a length of time, in error in respect to a question which so frequently required their consideration.

It is said, that policy requires that this right should be secured to accomplices. We doubt this. We readily admit that accomplices would more frequently consent to give testimony against their associates, if by doing so they would secure a pardon for themselves. But even now, when the right claimed for them is denied, they are not very often believed by juries; and we think that if the right claimed were admitted, they would rarely be credited at all.

We have not considered, and we mean to express no opinion whatever on the general power of the courts of this commonwealth to recommend persons accused to the mercy of the executive. All we mean to say is, that an accomplice has no right to demand such a recommendation, merely because he has given evidence on the part of the commonwealth, fully, candidly and impartially.

DUNCAN, J. The majority of the court not resting its decision on the same precise grounds on which some of the judges are inclined to place it, I shall very briefly assign the grounds of my opinion.

The point on which all the questions adjourned in this case turn, is, whether an accomplice, who gives testimony against his associates fairly and openly, has a right to demand from the court in which he is tried for the same offence, a recommendation to the executive for a pardon ; and whether the doctrine of the english courts upon this subject, as expounded in Rudd’s case, is in force in this state. *Rudd’s case was decided in *1775,*and it was there for the first time distinctly adjudged, that an accomplice giving testimony fully and fairly against his associates in crime has an equitable right to a pardon, and that the court will recommend him to mercy, and will stay the proceedings against him to enable him to apply for a pardon. The doctrine, as settled in Rudd’s case, undoubtedly sprang out of the ancient law of approvement, and was merely a modification thereof. That law, as it anciently existed, had, long before the decision of Rudd’s case, become obsolete. Sir Matthew Hale, a century before, had stated (2 Hale’s P. C. 226), that “the admitting of approvers had long been disused.” But in his time accomplices were admitted as witnesses, and it became a part of the policy of that country, in order to aid in discovery and punishment of crimes, to encourage accomplices to give evidence against their fellows, by holding out to them the promise of a pardon if they made full and fair disclosures; and the english courts, in furtherance of this policy, so moulded the common law doctrine of approvement, as to get rid of some of the objectionable features of the law as anciently practised and understood, and at the same time to carry out the public x^olicy. Such seems to me to have been the foundation of the decision in Rudd’s case.

Thus the law stood in fOngland, and of course in the colonies, until the revolution. Soon thereafter, in 1789, the legislature of Virginia, with a knowledge that the ancient law of approvement had been obsolete for more than a century, and with a knowledge of its modification by the english courts in Rudd’s case, passed a statute declaring that “approvers shall never be admitted in any case whatsoever.” Now, as the ancient law of approvers, as technically understood, had long been obsolete, there was no necessity for the legislature to repeal it; but as Rudd’s case had been but recently *decided, modifying the law of approvement, it is clear to my mind that the legislature had a sepecial view to that modification of it by the english courts; and this seems to me to be the more probable, from the fact that the reason assigned by sir Matthew' Hale for the law of approvement as anciently practised having become obsolete, applied with almost equal strength to the modification of the rule as settled in Rudd’s case. The reason assigned by him is, that “more mischief hath come to good men by these kinds of approvements, by false accusation of desperate villains, than benefit to the public by the discovery and convicting of real offenders.” The only difference between the ancient law of approvement and its modern modification is, that in the former the approver must confess his crime, and if he fails to effect a conviction of his confederate, he is to be punished, but if there is a conviction, then he is entitled to a pardon unconditionally. The modern doctrine does not require that the accomplice shall confess his guilt, *or*that his associate shall be convicted ; but if he gives his testimony fully and fairly, the court is pledged to recommend, and the executive *436to grant, a pardon. Can there be any material difference in the degree of evil that tyould be likely to arise “to good men by false accusations of desperate vi llains?’ ’ In either case, the price held out to the accomplice for his evidence is a pardon for his own crime: in either case, he is an approver. So, I infer, the legislature supposed. And such was undoubtedly the interpretation by the courts of the country, of the statute passed in 1789, abrogating approvements; as is proved by the opinion of the elder judge Tucker,- contained in a note to 4 Tucker’s Blackstone p. 33Í. This able jurist states expressly, that the Virginian statute repealing the law of approvement was understood to exclude the adoption of the principle settled by the english courts in Rudd’s case; although he seems to regret that accomplices *in this county were not placed upon the footing of accomplices in England. And I think it may be fairly inferred that the suggestion of judge Tucker, in his note referred to, gave rise to the passage of the subsequent statute of 1811, 1 Rev. Code, ch. 131, $ 6, p. 517, in which the legislature (for the purpose, no doubt, of holding out to accomplices an inducement to give evidence against their associates) provided that the testimony of a witness should not be used as evidence in any trial against himself. If the law of approvement, as modified in Rudd’s case, were in force, then it became unnecessary to hold out to accomplices any such inducements as were held out by the statute of 1811; for the principle of Rudd’s case placed them in a better situation; they became entitled to a pardon under the implied faith of the government, whilst under the statute they might be tried and convicted without any claim to pardon. And we find that the general court, in Byrd’s case, decided in 1826, expressly ' say (although in this respect the opinion was obiter) that the accomplice who gives evidence against his associates is not entitled to a pardon. In New York, it is true, it has been decided in Whipple’s case, 9 Cowen 707, that the law of England as settled in Rudd’s case was the law of that state: and under different circumstances that decision ought to have great weight here. But in New York there was no statute such as that passed in Virginia in 1789, abrogating approvements, nor any such as that passed in 1811. The reason assigned by the court of New York in Whipple’s case, while it was in strict conformity with the principles of the common law of approvements as modified by the english courts in Rudd’s case, is wholly inapplicable to this state.

I am of opinion, therefore, that although the judge who shall try the prisoner in this case may recommend him to the executive for a pardon, it is not his official duty to do so; that it is only an act of favour, which *the judge, the jury, or any person may extend. I am of opinion, also, that the court ought not to continue the prisoner’s case, merely to enable him to apply for a pardon.

DOUGEASS and NICHOEAS, E,

dissented from both the foregoing opinions, and from the judgment of the court, which was as follows—

This court is of opinion, and doth decide,

Eirst, That if a particeps criminis, on the trial of one of the parties to the crime, called as a witness on the part of the commonwealth, voluntarily give evidence, and fully, candidly and impartially disclose all the circumstances attending the transaction, as well those which involve his own guilt as those which involve the guilt of others, he will yet have no right, which a court of law will recognize, to a pardon for his own guilt, and therefore he will have no right to demand from the court a continuance of his cause, until he can have an opportunity to apply to the executive for such pardon.

Secondly, That the court ought in this case to overrule the motion.