for any fact committed, fhall be put to death, but by the teftimo ny of two or three witneffes, or that which is equivalent. In all profecutions for perjury, it is neccflary that there fhould be two witneffes, as the oath of the offender, is equivalent to the oath of one witnefs, it is therefore requifite that there fhould be another witness to turn the fcale. In all other offences, not capital, the eath of one credible witness, is fufficient evidence to justify a conviction.

Where the fact to be proved refpects the hand writing of the prifoner, the teftimony of witneffes well acquainted with it, that they believe the paper in queftion to have been written by him is evidence to be left to a jury. The confeffion of the prifoner out of court may be proved, and is fufficient evidence to convict him, without other proof, even in capital crimes, but his whole confeffion or story must be taken together. y When a prifoner dif clofes any facts to the attorney for the state, on an application to be admitted a witnefs for the ftate, it shall be confidered as confidential, and fuch attorney fhall not be allowed to give it in evidence on trial; for this would tend to defeat the benefit the public might derive from fuch difclofures: but confidential communica tions to any other perfons, may be given in evidence. No prifoner can be allowed by our law to become an approver; but the attorney for the ftate has a difcretionary power, where there are fundry offenders, and other proof cannot be had, to take any of them for witnefles against the rest, and excufe fuch witness from a profecution, for the offence. An accomplice in a crime, may be a legal witness, for the ftate and the party. But where fundry are joined in the fame profecution for the fame offence, they cannot tetify for each other: But if there be no proof against fome of them, they may be admitted to teftify for the reft.

It is a general rule, that no proof can be admitted refpectin any fact not charged in the indictment or information, but that proof may be admitted with respect to circumstances that lead to the crime, and that where feveral facts are charged, which conftitute the crime, the proof of any one of them is fufficient to convi the prifoner.

y Kirb. Rep.

Violent

Violent prefumptions, in fome cafes are taken for full proof, as where a man is stabbed in an houfe, and another runs out with a bloody knife in his hand, and no other perfon is in the house, at the fame time but all prefumptive evidence fhould be admitted with great caution for the candour and benignity of the law, has laid it down as a maxim, that it is better to adopt fuch general princi. ples refpecting prefumptions, that ten guilty perfons should escape, than one innocent perfon be convicted. Two rules are therefore laid down by judge Hale, whofe humanity rendered him the greatest ornament of the judicial character. Never to convict a perfon for ftealing the goods of a man unknown, becaufe he will not tell how he come by them, unless an actual ftealing be proved: and never to convict a perfon of murder or mauflaughter, unless the body be found dead; on account of two inflances, he mentions, where perfons were executed for the murder of others, when they were living, but mifling.

When the exhibition of evidence is clofed, the attorney for the ftate opens the argument, the counfel for the prifoner follow, the attorney for the state then clofes the argument, and the chief juftice then fums up the evidence in his charge delivered to the jury, in which he ftates in the most candid and impartial manner, the evidence and the law, and the arguments of the counfel for the ftate, as well as the prifoner. The counsel for the ftate, fhould manage every criminal profecution with the utmost coolness and fairness,* He should display no marks of zeal or paflion. He should not attempt to warm the feelings or prejudice the minds of the jury, by any pathetic deferiptions, or artful mifreprefentations. He fhould address himself to the understanding of the triers, and by a fair inveftigation of facts, and an ingenious difcuffion of points of law, open the way to the difcovery of truth and justice. Such a line of conduct would reflect the higheft honour on the candour and fenfibility of a public officer. But when we fee the prosecution of a criminal managed with a paffionate vehemence, and the argument a compound of pompous declamation, and affected pathos, we deteft the profecutor as a blood thirty favage, and unfeeling monfter. Tho every reasonable indulgence is to be granted to a prifoner to prevent a conviction, yet attempts to excite the com

paffion of a jury, ought not to be encouraged. It is by the exercife of our intellectual faculties, in examining and comparing ideas, that we are to difcover the truth of facts, and difcern the principles of justice. When our feelings are tremblingly alive to the diffref‐ fes of our fellow men, or our indignation roufed to the highest pitch, against the crime of which a perfon is accused, the mind cannot be in a proper state to form an accurate decifion. The ardor of fenfibility, and the zeal of indignation, may prompt us to corres pondent actions, but cannot commonly direct us in a right manner to the formation of an opinon for our opinions are to be formed on ideas, communicated to the mind, and not on paffious enkindled in the heart. Every juror ought therefore to banish every emotion from his breast, and be under the fole guidance of pure intellect, while he is hearing and deliberating on the evidence, and forming his judgment, this will place him in a proper fituation to examine and compare the evidence, and decide where the truth lies: but if his indignation is highly enflamed against the prifoner, "Trifles light as air, will be to him confirmation ftrong, as proof of holy writ," and a conviction may be founded on flight prefumption and circumftances of very remote probability. So where the compaffion of a jury is highly excited in favour of a prifoner, he will overlook the strongest proof, his feelings will run away with his judgment, and a false pity and humanity, will induce him to bring in a verdict of acquittal, against the clearest evidence.

It is pleafing to remark, that these doctrines are now generally recognized in our courts: and that every where as found sense and folid reafon prevail, courts of justice have rejected the folemn declamations, the pompous defcriptions, and the high wrought pathos of the ancient orators of Greece and Rome : and if Demofthenes, and Cicero, were now on earth, I doubt whether there is a judicial tribunal, that would approve and relish their fublime apoftrophes to the heroes of Marathon, and the hills and groves of Albanum, tho embellished with all thofe graces of elocution, and that blaze of eloquence, which rendered thofe orators, the admiration of their own times, and have tranfmitted their fame to all fucceeding ages.

When

When the cause is committed to the jury, they cannot be difcharged, till all have agreed in a verdict. A verdict may be either general or fpecial. A general verdict, is finding the prifoner guilty or not guilty. A fpecial verdict is where they have a doubt about the law, and chufe to leave it to the determination of the court they therefore find all the facts fpecially, and fubmit the point of law to the court, but they have full power to determine the law, as well as the facts, and to find a general verdict.

When the jury have agreed upon a verdict, they return into court, the prifoner is placed at the bar, and the verdict is publicly delivered in open court. If the verdict is "guilty”, he is then said to̟ be convicted of the crime where of he ftands indicted or informed against, and the court are to pronounce the judgment of the law. If the verdict is "not guilty," then he ftands acquitted, and can never afterwards be tried for the fame offence, which may be done only in a qui tam profecution, unless the verdict be fet afide. But even in cafes of acquittal, the ftatute law has vefted the court with difcretionary power of fubjecting the prifoner to the payinent of cost. It is enacted that in all criminal profecutions, if the court before whom the trial is had, are of opinion, that tho the prifoner is found not guilty, yet the profecution was occafioned by fome unlawful or blameable conduct on his part, he fhall not be difcharged til he fatisfies the coft but where the grandjury find a bill to them prefented, not true, and in every other cafe, where it shall appear to the court, that the indictment, or information was occafioned by mistake, without any fault on the part of the perfon accused, he fhall then be difmifled without coft': and the coft fhall be paid out of that treasury, into which the fine would have gone, had the criminal been fined on fuch profecution.When any perfon fubjected to a fine is unable to pay, he may be affigned in fervice to any citizen of the United States, fo long as hall be neceflary: but when fuch coft cannot be recovered from fuch perfon, it fhall be paid out of the flate treasury, when the trial was before the fuperior or county court, and out of the town treasury, where, if it was before an affiitant or justice of the peace. Where any expenfe is incurred in profecuting a perfon, who can

Statutes, 49.

not

not be apprehended, or escapes without fault of the officer, before he is committed or bailed, it fhall be paid out of the ftate treafury, if the crime was cognizable by the fuperior or county court.

The practice has been for all coft incurred in a profecution be fore the fuperior court to be immediately paid by order of the court, out of the flate treafury, whether the offender was convicted or acquitted, and fubjected to pay cofl or not. The coft in the county court, was paid out of the county treafury till a late statute authorised them to draw on the state treafary, for all cofts in criminal profecutions, and directed all cofts that fhould be recovered to be paid into the fame treafury.

CHAPTER TWENTY-FIFTH.

OF MOTIONS IN ARREST AND JUDGMENT.

AFTER verdist and before rendering judgment, motions in arrest

or flay of judgment may be offered. Thefe are for any defects in the indictment or information, as for the want of any fuflicient certainty, fetting forth and deferibing the perfon, the time, the place or the offence; as where in an information for stealing, the fact was laid to be done in another ftate, and no averment that it was committed in, or the goods ftolen brought into this ftate, on motion in arreft, after a verdict of guilty, the information was adjudged to be bad. In the course of thefe enquiries, we have had occafion to point out the requifites to conftitute an information or indictment: it will not be neceilary to enumerate them again: it is fufficient to obferve that where the indictment is not conformable to these requifites, advantage may be taken of it under a motion in arreft: for fuch defects are never aided by verdict, as in civil cafes. So on the trial, if there is any irregularity in the conduct of the jury, advantage may be taken of it in this manner. If the judginent is arrefted, it fets afide the whole proceedings; but it is no bar to another profecution, for the fame offence, and the perfon may be indicted and informed against a fecond time,

The attorney for the flate, my move in arreft, (when the pri

fouer

≈ Statutes, 420.