State v. Barrows

• Decision Date: 26 September 1884
• Citation: 76 Me. 401
• Parties: STATE OF MAINE v. MARY E. BARROWS.
• Court: Maine Supreme Court

76 Me. 401

STATE OF MAINE v. MARY E. BARROWS.

Supreme Judicial Court of Maine.

September 26, 1884

ON EXCEPTIONS.

Indictment against Oscar E. Blaney and Mary E. Barrows for the murder of Thomas Barrows at Kittery, on the fourteenth of November 1883. The respondents severally pleaded not guilty. On motion of Mary E. Barrows a separate trial was granted her and she was first put on trial.

The opinion states the question presented by the exceptions.

Henry B. Cleaves, attorney general, and Frank M. Higgins, county attorney, for the state, cited: R. S., c. 134, § 19; Const of Maine, Article 1, § 6; Hawkins, P. C. Vol. 4, b. 2, § 95; Rex v. Gerber, Temple & Mew. 647; Rex v Gallagher, 13 Cox, C. C. 61; Winsor v. Rex, Exch. Ch. 7 B. & S. 490 (118 E. C. L. 178); State v. Jones, 51 Me. 125; Com. v. Reid, 8 Phila. 385; People v. Whipple, 9 Cow. 707; United States v. Ford, 99 U.S. 594; George v. State, 39 Miss. 573; Whart. Cr. Ev. (8 ed.) § 439; State v. Calvin, R. M. Charl. 151; 1 Arch. Cr. Pr. & Pl. 479; 1 Bish. Cr. Pro. § 1079; Marler v. State, 67 Ala. 55; 2 Starkie, Ev. 1, 12; 1 Starkie, Ev. 143; 1 Greenl. Ev. § 379; Jones v. Georgia, 1 Kelley 610; Wixon v. The People, 5 Parker's Cr. Rep. 119; Best, Ev. (Morgan Ed.) 170; Noyes v. State, 41 N.J. 429; State v. Brien, 3 Vroom 414; Hunter v. State, 11 Vroom 495; Com. v. Marsh, 10 Pick. 57; Com. v. Brown, 130 Mass. 279; State v. Dyer, 59 Me. 303; State v. Black, 63 Me. 212.

Ira T. Drew, William Emery, and John B. Donovan, for the defendant.

At the common law the witness, although not himself on trial, was not competent, even for the prosecution. Bishop on Crim Proc. (3d ed.), § § 1020, 1166; Edgerton v. Commonwealth, 7 Bush 142; State v. Bruner, 65 N.C. 499; People v. Donnelly, 2 Park. C. C. 182; Lindsay v. People, 63 N.Y. 143; Rex v. Ryan, Jebb, 5; State v. Mooney, 1 Yerg. 431; Man v. Ward, 2 Atk. 229.

Where the co-defendant is offered for the defence, the cases, many of which are cited by Bishop in notes to the passages above cited, are almost unanimous against his competency at the common law; and the cases that dispute this are led by Jones v. State, 1 Kelly 610; Garrett v. State, 6 Mo. 1, of which the former is merely an obiter dictum that the witness, if he had been offered, would have been admissible; and the latter was severely criticised in McMillen v. State, 13 Mo. 30, and overruled by State v. Roberts, 15 Mo. 28, the last case being followed by the subsequent decisions in that state. The main ground of objection is, that he is a party to the record. State v. Jones, 51 Me. 125; Commonwealth v. Marsh, 10 Pick. 57; Commonwealth v. Smith, 12 Met. 238; State v. Young, 39 N.H. 283; People v. Bill, 10 Johns. 95; Adwell v. Commonwealth, 17 B. Mon. 310; State v. Worthing, 31 Me. 62, 64; Moss v. State, 17 Ark. 327; State v. Nash, 7 Iowa 347; Thompson v. Commonwealth, 1 Metcalfe 13; Baker v. United States, 1 Minn. 207, and many other cases.

The expressions of some writers and cases to the effect that a co-defendant is a good witness for the prosecution, if not himself on trial, are, when traced back, found to be based on obscure passages of ancient authors or reports, hardly any of which passages are so strong as the language of ALLEN, J., in Lindsay v. People, supra. " An accomplice is in all cases a competent witness for the prosecution; " though that language must have been intended to convey some meaning consistent with other parts of the opinion.

For example, Wharton's statement (Crim. Ev. § 439) that such a witness is admissible for the prosecution rests on three citations: Rex v. Gerber, T. & M. C. C. 647; Noyes v. State, 12 Vroom 429; Rex v. Gallagher, 13 Cox. C. C. 61.

In Rex v. Gerber, the matter is said to be settled by 1 Hale, P. C. 305; Rex v. Ellis, MacNally, 55; Lee v. Gansell, 1 Cowp. 3; Com. Dig. Testmoigne, witness, A. 3; Hawk. P. C. bk. 2, c. 46, ss. 90 et seq.

The citations from Hale and Hawkins will be discussed hereafter. In Rex v. Ellis, a nol pros. was entered. In Lee v. Gansell, it was held that a witness convicted of perjury is competent before judgment. Comyns merely says an accomplice in the same crime is a good witness before conviction, which is of course true in some circumstances, e. g., if he is indicted separately or not indicted, and certainly not true in all circumstances, e. g., if he is jointly indicted and tried; and undoubtedly means only that his being an accomplice does not of itself exclude him. None of these has any tendency to settle the question.

Wharton's second case, Noyes v. State, merely affirms State v. Brien, 3 Vroom 414, and this makes the witness competent for either party, thereby contradicting the decision of this court in State v. Jones, supra. The case cited in State v. Brien, in support of the decision, are King v. Desmond, Noy, 154; Rex v. Davis, 3 Keb. 136; King v. Bedder, Sid. 237; Reg. v. Lyons, 9 C. & P. 555; Rex v. George, 1 C. & Marsh, 111.

The first contains merely the ancient doctrine of approvers. The second and third are cases where defendants against whom there was no evidence were admitted as witnesses for their co-defendants. They have no bearing on the point except on the supposition that the defendants were admitted without acquittal or nol pros. as to which the reports are silent; if they were so admitted then, since they were on trial, the cases are opposed by an overwhelming array of later authorities. The fourth has already been discussed. In the fifth the witness had pleaded guilty.

The text writers cited in State v. Brien are Hale, Starkie, Hawkins, Russell and Roscoe.

Hale says (1 Hale 305): " But in these and the like cases, (1) the party that is witness is never indicted, because that doth much weaken and disparage his testimony, but possibly not wholly take away his testimony. (2) And yet, though such a party be admissible, as a witness in law, yet the credibility of his testimony is to be left to the jury, and truly it would be hard to take away the life of any person upon such a witness; " but a little below he says, " If A B and C be indicted of perjury on three several indictments concerning the same matter, A pleads not guilty, B and C may be examined as witnesses for A for yet they stand unconvicted, although they are indicted." This is one of the standard citations for both sides of the question. The most probable construction would seem to be that he knows the practice to be never to indict an accomplice that the government intends to use as a witness; he gives a plausible reason; he, of course, cannot quote decisions as to the competency of such a witness, since the point cannot, according to his statement, ever have been raised; he is in doubt as to how it would be decided, if raised; he thinks that, even if such a party should be decided to be admissible as a witness, yet, etc.; but it has been decided that when the indictments are several, the defendant in one is admissible on the trial of another. Moreover, it may be that the witness he thinks possibly competent is one separately indicted; though as such a one would be admissible for the defendant, his competency for the prosecution would probably not have been thought doubtful.

Hawkins says (P. C. bk. 2, c. 46, § 90 [in some editions 94]): " It has been long settled, that it is no exception against a witness that he hath confessed himself guilty of the same crime, if he have not been indicted for it; for if no accomplices were to be received as witnesses, it would be generally impossible to find evidence to convict the greatest offenders." And further on (id. § 91 [or 95]): " Also it hath been often ruled that accomplices who are indicted, are good witnesses for the king until they be convicted." And again (id. § 94 [or 98]): " Also it hath been adjudged, that such of the defendants in an information against whom no evidence is given, may be witnesses for the others." These sections are also cited on both sides. The first seems to be rendered nearly meaningless by the second; for its last sentence shows that the admissibility of such a witness for the prosecution was in his mind the same as is expressly stated in the second, and it can hardly be that the not having been indicted had been thought to be an objection to the witness, or that a previous confession had been thought to make him worse than one made on the witness stand. Again, nothing is said as to whether the supposed indictment is joint or several, and in the last cited section no intimation is given that the defendants, who were to be witnesses for the others, should first be acquitted, of which there can be no doubt whatever, since all are on trial.

The statements of Hale and of Hawkins, therefore, are loose and vague, and their meaning, so far as applicable to this case, is uncertain.

Starkie says (2 Starkie on Evidence, 4th Am. ed. 22): " An accomplice, as it seems, is a competent witness, and may be examined, although he is indicted along with others, provided he be not put upon his trial at the same time with the others (i)." And note (i) is: " Qu. and see 1 Hale 305 [quoting a portion of the extract before given in this brief, and italicizing the words, ‘ but possibly not wholly take away. ’ ] See also Rex v. Ellis. MacNally, 55." So far, therefore, as Starkie is an authority, he is for the competency of the defendant for either party; and he is cited to the compentency for a co-defendant in Garrett v. State, loc cit. But he is plainly in doubt.

Russell (2 Russ. on Crimes, 3d ed. by Greaves, 956,) quotes the second of our quotations from Hale (which is only that a defendant who has pleaded guilty is admissible for a co-defendant), and cites the passage just quoted from Starkie and Rex v. Lyons, supra. He has no other authorities.

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