People v. Bleeker , 2 Wheel. Cr. Cas. 256 ( 1823 )

Per Cur.

The rule has been well settled in this court in the Hitchcock’s case, (6 C. H. R. 43,) where the same point was taken, and in the case of Alison v. Matthieu, (3 Johns. Rep. 233,) by the supreme court of the state. The evidence is inadmissible, on the ground that it is competent in cases of conspiracy, as in those of forgery, libel, and uttering base coin or forged notes, to show by other acts the quo animo or scienter of the defendants.

Maxwell farther proposed to read the examination of Bleeker, taken separately and apart from the other defendant, to prove the charge laid in the indictment. ■

Blake objected on the following grounds :—If the examination now offered were .read in evidence, it must of necessity operate against both of the defendants, or be utterly nugatory and irrelevant. The defendants are not now on trial for a conspiracy in which any third person can form a party; and as no man can by himself commit the crime charged in the indictment, they must he jointly convicted or jointly acquitted.

Can the document offered be regarded as evidence against both ? It is at most the mere confession of the individual under examination ; and shall this be admitted to convict another 1 Surely not. (2 Hawk. Pl. Cr. 46. M’Nally’s Evid. 40.)

It is true, the course proposed has in some instances been sanctioned in Great Britain, and- confessions to which the accused had never assented, either expressly or by implication, have been admitted against him. This, however, was done by a court which was for ages the chosen instrument of royal vengeance. A court whose proceedings have long been execrated and denounced even in the kingdom where it originated and flourished. A tribunal which, to use the words of Lord Clarendon,- “ held for honourable that which pleased, and for just that which profited.” I allude to the star chamber.

I repeat it, there is no instance to be found in which the confession of óne has been permitted to operate against another, except in cases where the hitter and settled animosity of the crown demanded the sacrifice of the accused, in a voice which bade defiance to the principles of truth, humanity, and justice. Such were the cases of the Earl of Essex, (1 Sta. Tí. 197,) of Sir Nicholas Throckmorton, (1 Sta. Tr. 70,) and of Sir Walter Raleigh,^* (cited M’Nally’s’Evid. 40.) These are not such precedents as this court will treat with deference and •respect, nor are they such, I trust, as the district attorney will rely on as authority. Even Great Britain, though she has not yet forgotten, in cases where the crown is a party, the lessons of oppression and violence which she learnt in days of yore, has in latter times established a principle more humane and just than the one contended for in the present instance. (Thelwell’s case, M’Nally’s Evid. 614.)

Price.—An examination in an instance of this kind stands on a different footing from one taken in a case of felony. The taking of the latter is authorized and provided for by statute ; but this is, at most, a mere naked confession, reduced to writing,.without even the solemnity of alegislalive sanction. Such a paper cannot surely be read to aid , . . / ' , . , , the conviction, not only of the party examined, but of another individual also.

After much discussion, the evidence was overruled.— Verdict Not Guilty.

* On this occasion, Sir Walter with some little acrimony, but certainly with much justice, remarked of Sir Edward Coke, then attorney general, that “ Mr. attorney neither behaved like a man of quality nor a man of virtue.”