Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1871-07-10

Ijury, who, IL they believe him., may con-
vict the prisoner" The judge, 10 says,
may caution them against reposing
hasty confidence in the testimony
7 ~iustihsbls, n We add IL is proper to do
so, where he has cause to spprehend that
the jury may feel themselves bound to
and q verdict conforming to the positive
testimony Of the witn0ss, without weigh
ing the circumstances of suspicion and
distrust under which bis testimony is
rendered. Long usage, sanctioned by de-
| hberate judicial appreciation, has given to
; this ordinary caution g precision which
makes e approach to a rule of law. Ju-
! rors are advised that Ii Is deemed unsafe
!, to convict on the testimony of an Sccom-
plice, unless that testimony receive ma
terial support from evidence derived
GIidRde, coinciding with it in considerable
circumstances, as to leave no rational
doubt In their minds Of its truth" "In
what parts he says Of the details of the
testimony this confirmation should be
had, in order TO remove the jealousy and
! suspicion 70 which the testimony is ex-
posed, and to create suGh 3 degree Of con-
fdence in the general credibility of the
witness, as to command faith in those
parts of his narrative, where he is not
thus supported, the judge has not the
right to direct, or advise tie jury. Spec
ulative writers have indeed undertaken,
HANA ~ ~ A0NA10 AAAN1 "a
faith on the subject, but the Lda0 is wholly
silent concerning them. TOlersting and
approving (he adds) OF the general eau
ton, the law trusts the Applicant N OF the
caution, under all the circumstances tes-
titled, wholly to the intelligence and in
tegrity Of the jury"
This opinion OF Judge CASTOR, and of
the Supreme Court Of North Carolina,
when that court was composed OF Chief
Justice Ruf1in, and Daniel and CASTOR,
we { feel is entitled to Es much
weight IS authority as The opinion Of any
Judge in England, in the present century;
and far more than opinion OF any teKt-writ-
er, not OF long established and standard
reputation. And we should be slow to
maintain, on the examination wehsve been
able to give this question, that such q
court had not laid down the rule OF law
correctly.
we think the Circuit Judge not only
conformed to the law as laid down by the
Supreme Court Of North Carolina. but
went sven farther las we shall show after
swhile) than is required by the authori-
ties, even those cited In opinion of my
brother, Nelson, in support Of the views
Of msioritY of the Court,
LET Us EXAMINE THIS cHAReE
| for a moment and see If it will stand the
test Of the authorities we have cited, and
| Of others we propose to cite in after part
| of this opinion. he tells them: "The
testimony of a confessed accomplice has
been given to you. This kind of testi-
mony is admissible, but should be re-
ceived with scrutiny, iIlasmuch IS 1t is
the statement OF q self-scknoWledged
felon. The evidence of an accomplice is
still competent, Notwithstanding the in
ducements be has to make the disclosure
on his alleged confederat5s in crime may
spring from a hope Of pardon, or there
may be an expectation of immunity from
all punishment, based on the expressed
or implied promise of the proper author
tiles. Its competency Isl unqUestiOned,
but the degree of credit to which it is
entitled Is exclusively within the prov
ince of your consideration. Do you be-
lieve he told the TRUTH That is
the question for YOU to set
tie. A jury ma be warranted
in convieting on the unccrroborated tes-
timony of an accomplish, ii they are fully
satisfied of the truthfulness of his nara
tive, as to the circumstances of the felony,
and the identity of the telon " The re-
mark here, that he does not tell them
they are bound to convict, or that they
should convict on the uncorrobOrated
are fully satisfied of its truth, but that
they mae convict. He hen goes on: SIT
is not absolutely necessary that there
should be other direct testimony in the
case. Whether or o the sccomplice in
the case has told the truth, you may ap-
ply the ordinary tests in order to judge
Alright his appearance, conduct, manner,
etc, giving correctly the tests as laid
down in the books. If he has fully salts
fed YOU of the truth of his narrative, not
withstanding the motives that have oper-
sted upon his mind to make the same,
even to escape the penalty Of the law,
still you MIGHT convict tk6 defendant, in
dependent Of any other testimony" And
here we ask, what other rule could be laid
down consistent with sound reason or
authority? He does not tell them they
shea Id or Oa5gh5 to convict on his testt-
mony, independent of other evidence, but
that they might do it, "if fully inspired
with confidence in the correctness of his
narrative" To hold the contrary, is to
maintain that a jury may be fully salts
fed, by competent testimony of the truth
of g proposition submitted for their de-
termination, and at the same time bound
to return s verdict on their oaths, that 1t
was not made out by the proof to their !
satisfaction, contrary to the truth of the )
case. This cannOt be the Law regulating
the action of g jury, unless it be I
assumed that in cases of this character,
the facts are to be made out by tes- :
timony OF an accomplish, that the simple J
ascertsinment of the very truth OF the !
case is not the end of their Investigations, l
Duk Euhb Wnou bul1l Is hoCcLSd1nE0 W snDAA
all rational doubt, there must :
be still something beyond this presented !
10 them before they can affirm in q verdict !
The truth of what is satisfactorily and L
fully proven by competent testimony. ,
What more can additional testimony do 1
han to make out the case, so that the jury 4
shall be fully satisfied of the facts which .
hey are called upon to Investigate, and be :
inspired with confidence in the mar '
-atiVe given by the witness7 If this end =
8 attained, cumulative evidence, 1t is {
rue, may be presented, but 1t can never u
1--WE rise TO q higher certainty than what
S required in his Honor's charge. a
His Honor, however, after laying down a
he rule thus cautiously to the jury, keep a
ng prominently before them the fact that o
he testimony of the accomplice Is thai of G
felon and q suspected person, goes on as
"But before conviction the court 81
would GdUise that the testimony of the b
Iecomplice be in some measure confirmed il
" other satisfactory evidence, so great h
re his temptations to fix guilt upon q
hat he may shield himself" He q
Iere does precisely what the Supreme x
yourt of North Carolina says he should do, a
is, the Jurors are advised, that 1t Is a.
Ieemed hard, and that 1t is unsafe TO on Il
let on testimony Of an accomplice "
that testimony receive ms N
srlsl support from other evidence" 81
he Judge in this case says "eOnirmed a.
Y other satisfactory evidence, and gives q,
be reason for 1t, the temptations be is h
to convict others and shield HIM pl
elf" In other words, while the jury may Ii
Onvict on the testimony of the accom- b,
lice, il fully satisfied of les truth, the AZ
ourt advises them not to do so, unless bt
Orroborsted, or confirmed, as he more Is
expresses It, te
But TO proceed, he tells them, and so, n,
you feel unwilling to act upon the sole q
Of the accomplice, and think it tn
lOuld be supported IN its material parts, en-
its entire tr~uthfulness, you will at
70 If 1t is c~orroborsted by other evidence dC
! tbs cause, direct or circumstantisL 81
he court would here suggest that if, in n
opinion, the story of the sceOmplice su
beds confirmation, that 1t be confirmed III
20 the guilty party who did the hang hs
e." Take this in connection with the in
ct that he had already advised them not IN
convict unless the testimony of the &C To
was in some measure confirmed an
other satisfactory evidence. This part Ie,
His Honor's charge goes as
T as the fsrthest authority, or sd
digestion Of any one, that is Tia
should be confirmed as TO the guilty 90
circumstances connected with the ho
ansaction, that might serve to eOrrobo- mi
to many particulars of his story as to an
J details and still lcsVe 1t possible that no,
g parties on trial were not the guilty on
,rpetratOrs. This fixes the measure Of nv
Q oorroboration, as we think, up to the al
Try rule laid down In the opinion OF q
Of the court, as delivered by my IN
armed brother Nelson; for the rule
lays down is, that the cons WI
should be Ia 50 much or so ac6
parts OF the narrative as will TeG- POI
naJIy satisfy the jury he is telling the sp'
nth, without restricting the cOnirma- in
IN to any particular point, sIld leaving wa
9 effect Of such confirmation TO the con- on
of the jury" Now, here the l
rcuit Judge hiss made his charge strong the
In favor OF the prisoner and against ths beS
ate than Is required by the rule, for he in