State v. Carey

• Decision Date: 06 January 1904
• Citation: 56 A. 632,76 Conn. 342
• Parties: STATE v. CAREY.
• Court: Connecticut Supreme Court

56 A. 632

76 Conn. 342

STATE

v. CAREY.

Supreme Court of Errors of Connecticut.

Jan. 6, 1904.

Appeal from Superior Court, New London County, Alberto T. Roraback, Judge.

Michael Carey was convicted of an attempt to produce abortion, and he appeals. Affirmed.

The information of the state's attorney charged one Marion W. Beebe and the defendant, Michael Carey, jointly with an assault on the body of Ida May Lafferty, and with their hands thrusting an instrument into her womb and body, she being pregnant with child, with the intent thereby to procure upon her a miscarrifige and abortion, the same not being necessary to save her life or that of her unborn child. The information contained three counts, charging three offenses; the first as committed on July 16, 1902, the second on August 1st, and the third on August 20th, of the same year. At the request of Carey he was accorded a separate trial. The state claimed to have proved that Carey and said Lafferty were, at the times of the offenses charged, and for some time prior thereto had been, on intimate terms, involving sexual intercourse; that, upon Ida's discovering signs of pregnancy, Carey hired said Beebe to operate for abortion, and on July 16th conducted her to a room provided for the purpose, where Beebe performed the operation, Carey watching outside the locked door; that, upon discovering further signs of pregnancy, a second operation was performed on August 1st, and a third on August 20th. The defendant claimed that the state had proved that operations were performed upon ida by Beebe upon the dates mentioned, but claimed that the testimony was insufficient to prove the defendant's connection with the crime. Beebe and Lafferty were examined as witnesses for the state. The defendant did not testify. It does not appear what, if any, other testimony was produced in support or contradiction of the defendant's connection with the crime. The defendant was found guilty, and sentenced upon each count. A finding of facts was made by the court (Roraback, J.), and the defendant's appeal assigns errors in the charge and in the rulings upon evidence.

William H. Shields and Amos A. Browning, for appellant.

Solomon Lucas State's Atty.

HAMERSLEY, J. (after stating the facts). The main error assigned in the reasons of appeal is found in the exception to that part of the judge's charge which relates to the credibility of the competent witness Ida M. Lafferty, who was the victim of the attempted abortion. In her testimony she admits that moral turpitude belonging to an unmarried woman, who, believing herself pregnant, consents to an operation on her body for the purpose of avoiding the consequences which might follow the birth of a bastard child, and that she has committed the statutory crime of attempting to secure her own miscarriage. Her testimony is given under the bias of such interest as is disclosed by the record. In view of this condition and the defendant's claim that her testimony is worthless unless confirmed by independent evidence, the court substantially instructs the jury as follows:

The state relies upon the testimony of the witnesses Beebe and Lafferty. Beebe is what is known in law as an accomplice. He admits that he was one of the perpetrators of the crime charged against the defendant. You should act upon the testimony of an accomplice with great caution. As a general rule, it is unsafe to convict upon such testimony alone. It ought to be corroborated in material facts connecting the prisoner with the crime. The witness Lafferty cannot, technically speaking, be regarded as an accomplice. She is not a perpetrator of the crime charged against the defendant, and cannot be convicted of that crime. But in submitting her person to the operation of Beebe she did commit a distinct crime, created by another statute, which provides for a different penalty; and you may consider her confession of these crimes as affecting her credibility and the weight of her testimony. You ought not to convict in this case unless the evidence is clear, strong, and convincing, and removes every reasonable doubt from your minds as to the guilt of the accused.

In the absence of any written requests to charge, and in view of the state of evidence so far as disclosed by the record, we cannot say that the trial court did not fairly and properly exercise its discretion in commenting on the credibility of the witness Lafferty, as well as that of the witness Beebe. Assuming that the witness Lafferty was an accomplice, the defendant claims that the court had no discretion in commenting on the weight of her testimony; that a practice of English judges in commenting on the testimony of accomplices, followed more or less closely in American courts, has become in this state substantially a rule of law directing a judge, whenever an accomplice testifies, to advise the jury that it is not safe to convict on his testimony alone, and that any failure to obey this direction is ground for a new trial. We cannot accede to this claim. When the testimony of accomplices was first used, it was, under the then settled law of evidence, incompetent, and was admitted notwithstanding, as an exception to that settled law, justified by necessity. The conditions at that time affecting such testimony were mainly these: A convicted felon was an incompetent witness; an accomplice confessed himself guilty of felony; a person having an interest in the event of a prosecution was an incompetent witness; the liberty or death of an accomplice, at first absolutely, and afterward more or less directly, might depend on the event of the prosecution in which he testified; the necessity of punishing certain crimes induced the enactment of statutes offering bribes to perpetrators of these crimes who, confessing their commission, might charge the crime upon their associates, or furnish the government with evidence that would lead to the arrest and conviction of others. Thus grew up the law of approvement. Under certain circumstances a person arrested and indicted for felony might confess his crime in open court, and appeal others, his accomplices, in its commission. If the court allowed the appeal, the appellees were arrested and tried, and, if convicted, the accusing accomplice had his liberty, and, if not convicted, he was hanged. The law of approvement was in force at the close of the eighteenth century, although long obsolete. In analogy to this law grew up the practice of admitting persons indicted for crimes as king's evidence, under an implied assurance of immunity from punishment for the crimes confessed by them. Rex v. Rudd, 1 Cowper, 331, 334; Hale's Pl. Cr. 303; Hawkins' Pl. Cr. bk. 2, c. 24; Id. c. 37, 7; Id. c. 46. Hawkins defines an accomplice as one who is "an accomplice in the crime charged against the prisoner." Lord Mansfield defines an accomplice, in giving the main reason why his testimony is untrustworthy: "They [accomplices] are clearly competent witnesses. Their single testimony alone is seldom of sufficient weight with the jury to convict the offenders, it being so strong a temptation to a man to commit perjury, if by accusing another he can escape himself." Rex v. Rudd, 1 Cowper, 331. The statutes encouraging informers to buy immunity in crime by accusing others produced accomplices as witnesses in the most odious possible light The danger of their testimony was enhanced by the condition of the law, which excluded an accused person from the witness stand. The most reputable persons in the realm might be convicted of crime because they could not be heard in contradiction or explanation of accusations by the most Infamous. Instances of such cruel injustice were not wanting in times of high political excitement. Notwithstanding an accomplice was thus admitted as a witness only as an exception to the settled law governing competency, he was nevertheless a competent witness. The weight and credibility of his testimony was subject to the settled rules and regulations of law affecting that of any competent witness. The jury might give him full credit, and convict on his testimony alone. The court, in commenting on the weight of his testimony, had the same discretion exercised in respect to every competent witness. This law was affirmed by the Twelve Judges in 1788, and was unquestioned. Rex v. Atwood, 1 Leach, C. C. 464; Rex v. Jones, 7 T. R. 601, 609; Rex v. Hastings, 7 C. & P. 152. It was under these conditions and in respect to witnesses known as accomplices, thus defined, that during the latter part of the eighteenth and the earlier part of the nineteenth centuries the statements of English judges in respect to their own practice in dealing with such witnesses was made. The undoubted practice of sharply, and often indignantly, denouncing the worthlessness of the unconfirmed testimony of a witness who acknowledged himself a knave, and that he was testifying against his comrades in the hope of obtaining by this means a pardon for his own crimes, was natural, lawful, and just. And the form, force, and extent of such denunciation was wholly discretionary with the judge, according to the circumstances surrounding each witness.

The practice, so far as it was a general practice, of denouncing accomplices as per se witnesses whose unconfirmed testimony it was unsafe to believe, arose from the conditions we have mentioned. Those conditions no longer exist. An accomplice, as a witness, is not an exception to the law of competency, selected on grounds of doubtful morality, based on public necessity. A convicted felon is not an incompetent witness. A person interested in the event of a prosecution, however great his interest, is not incompetent. The peculiar statutes that bred the approvers or informers of former times have no place in our legislation. Arrangements for king's evidence or state's evidence cannot be initiated by the informer himself or a private prosecutor, but are confined to an officer of ...