People v. Thomas

• Decision Date: 05 November 1861
• Court: Michigan Supreme Court
• Parties: The People v. Henry Thomas

9 Mich. 314

The People v. Henry Thomas

Supreme Court of Michigan

November 5, 1861

Heard October 10, 1861

On exceptions from Genesee circuit.

The defendant being on trial for larceny, May 16, 1861, after the evidence had closed on the part of the prosecution, offered himself as a witness on his own behalf, to be sworn and to testify in the same manner as other witnesses. The circuit judge ruled that he was not entitled to be sworn, and to testify as a witness on his own behalf, and rejected him as such. The case now comes before the court on exception to this ruling.

Judgment allowed on the verdict.

M Wisner, for defendant.

C Upson, Attorney-General, for the people.

Martin Ch. J. Manning, J., Campbell, J. concurred. Christiancy, J. concurred in the result.

OPINION

Martin Ch. J.:

The legislature of 1861, by the passage of the act No. 125, amendatory of the law of evidence, evidently intended to render all parties (except as therein excepted) competent witnesses in civil cases only. This is obvious from an examination of the law as it existed before such amendment, and of the amendatory act. As the law stood prior to the act of 1861, all persons could be witnesses except parties named in the record, or in whose behalf suit was prosecuted or defended, or the husband or wife of a party. A party could be made a witness only upon an affidavit being made and filed by the adversary party that facts were within the knowledge of such party which could be proven by no other person. In no case could a party testify as a witness in his own behalf; he must have been called by his adversary. Under that statute a person accused of crime could not, of course, have been compellable or allowable to testify upon his trial.

The act of 1861 removed all disability of parties, except as therein otherwise provided; and among other provisions contains the following: "Nothing in this act shall be construed as giving the right to compel a defendant in criminal cases to testify, but any such defendant shall be at liberty to make a statement to the court or jury, and may be cross-examined upon any such statement." This provision it is clear has the effect to confine the operation of the act to civil cases, allowing the accused in criminal cases to make a statement or not at his option. The difficulty seems to have arisen from the use of the word "compel;" but had the legislature designed to allow him to be a witness, although not compellable, very different language would have been employed from that found in the act, to express such an intention. The act declares what he may do; and this declaration excludes the presumption that any other right was conferred. If the people cannot compel him to testify, neither can he force his testimony upon them. Otherwise there would be no reciprocal rights, and the prisoner would possess the double advantage of offering his sworn or his unsworn statement at his option. The legislature did not confer, nor intend to confer, upon a person accused of crime a right superior to that given to parties in civil actions, either by allowing him to swear in his own behalf, while he is not compellable to swear at the call of the people, nor by giving him the additional right of making his statement without oath, if safety or caution suggested it. We are therefore of opinion that he can only make a statement, and that such statement can not be upon oath.

There was no error in the ruling of the circuit judge, and judgment should pass according to the verdict.

CONCUR BY: Campbell

CONCUR

Manning J. concurred.

Christiancy J. concurred in the result.

Campbell J.:

The only question arising in this case is, whether a prisoner on trial can demand to be sworn on his own behalf, to give evidence in the cause.

The statute of 1861, which makes parties competent witnesses, and compellable as well as allowable to testify in the same manner as other witnesses, contains this proviso "Nothing in this act shall be construed as giving the right to compel a defendant in criminal cases to testify, but any such defendant shall be at liberty to make a statement to the court or jury, and may be cross-examined upon such statement:" Laws 1861, p. 169.

Taking this statute alone, without reference to any extrinsic considerations, I think it would fairly be construed as authorizing the defendant to be sworn. And if we looked no further than our other statues, the changes they have made in the common law rule would not lead to any other conclusion. They have announced it as our policy to make neither interest, nor suspicion or conviction of crime, any bar to the admission of witnesses, leaving it to the jury in each case to determine on the credibility of their testimony. If no such objection is to prevail, a prisoner at the bar, whose innocence must be presumed until disproved, is in no worse position of unfitness to testify than others, and such objections as may exist against his credibility are sufficiently apparent here as in other cases. My impressions have been, for these reasons, in favor of such a construction as will permit him to be sworn. But, on reflection and examination of the whole subject, I have come to a different conclusion; although the question is not to my mind entirely free from difficulty. The difficulty is increased by the fact that while the statute of 1861 is substantially borrowed from the English act of 14 and 15 Vic., c. 99, the section of that act referring to defendants in criminal cases is changed in a very important and pertinent provision. By that act it is declared that "nothing herein contained shall render any person who in any criminal proceeding is charged with the commission of any indictable offense, or any offense punishable on summary conviction, competent or compellable to give evidence for or against himself or herself, or shall render any person compellable to answer any question tending to criminate himself or herself, or shall in any criminal proceeding render any husband competent or compellable to give evidence for or against his wife, or any wife competent or compellable to give evidence for or against her husband:" 1 Phil. Ev., xv (ed. of 1860). Our statute omits the provision that such testimony shall not be competent, and expressly permits a statement from the prisoner. This material discrepancy between the statutes introduces an element of difficulty of a serious nature, inasmuch as in all our innovations on the law of evidence, we have attempted in great measure to follow the English statutes, and adopt their language. And had not the terms used in our own statute referred to a practice the propriety of which has been a subject of consideration for many years, it would be difficult to show any very convincing reason why so plain a variation made in copying a statute should be disregarded or narrowed in its application.

There was, however, much force in the view presented, that the subject is one over which the legislature has not complete control. The constitution does not permit any man to be compelled in any criminal case to be a witness against himself: Const. of Mich., art. 6, § 32. This prohibition would undoubtedly apply as well to prevent questioning without oath as with. The French law, under which the questioning of the prisoner has been by some authorities likened to the "questioning" by torture, does not put him under oath. Under the law of England (under which our principle that no man should be compelled to criminate himself originated) the witnesses for a defendant charged with felony were never sworn until the statute 1 Anne, § 2, c. 9, was enacted to permit it: 2 Hale P. C., 283; 4 Bl. Com., 359, 360. And at one time he could not even introduce unsworn witnesses: Ibid. But while it has been permitted in many cases to examine a prisoner without oath, so far as he was willing to answer, it has been adjudged that a confession or statement or examination under oath, even after a caution given to the prisoner that he need not criminate himself, must be regarded as made under undue influence, and excluded on that account. And this ruling was made under a statute expressly authorizing the examination of the accused: 1 Hale P. C., 585; Rex v. Smith, 1 Stark. R. 242; Rex v. Webb, 4 C. and P., 564; Rex v. Lewis, 6 C. and P., 161; Rex v. Rivers, 7 C. and P., 177; Regina v. Pikesley, 9 C. and P., 124. The statute must have meant one thing or the other, and not both. It must have contemplated nothing but a sworn statement, or nothing but an unsworn statement, in all cases. The view of the English judges that an oath, even where a party is informed he need answer no questions unless he pleases, would with most persons overcome that caution, is, I think, founded on good reason and experience. I think there is no country, certainly there is none from which any of our legal notions are borrowed, where a prisoner is ever examined on oath. And, inasmuch as unsworn examinations and statements are not unfamiliar in criminal jurisprudence, we are bound in view of this to inquire whether the statute can not be carried out more literally, as well as more naturally, by applying its language to statements not under oath.

Although no statute has yet, so far as I am aware, changed the old rules of...