The People
Elihu Mather
Supreme Court of Judicature
May Term, 1830

4 Wend 229
CITE TITLE AS: People v Mather

[*238] By the Court, MARCY, J.

The objection to the decision of the circuit judge in setting aside Stephen Martin, junior, as a juror, is, that the facts did not disclose a principal cause of challenge to him. The law relative to this point has been so recently and so fully considered by this court in the case of Vermilyea and others (6 Cowen, 559, and 7 id. 108), that we are saved the labor of going back to the old cases to search out, amid their contradictions, the proper rules to gov[*239]ern our decision on this part of the present application. This has been done, as I conceive, in a very satisfactory manner. Little more is now imposed on us than to make an application of them.

A challenge propter affectum is of two kinds: a challenge to the favor and for principal cause. The former is always to be determined by triors, and the latter generally by the court. If a juror has been an arbitrator in a cause involving the matter to be tried, or the counsel of one of the parties, if he is connected by blood with either of them, or if the challenge is for any other of the many matters which of themselves are supposed to constitute a valid objection to him, and the facts on which the challenge rests are admitted, the court is to pronounce the effect of such facts; but if the facts are disputed, it seems to be the proper course to submit them to triers (Trials per pais, 199; 1 Chit. C. L. 446, 7; 6 Cowen, 559).

In the case of Vermilyea (6 Cowen, 555), Judge Woodworth says, when there is a dispute about the facts in the case of a principal challenge, triers are to be appointed as well as in that for favor. It was decided in that case that a challenge for principal cause formed a part of the record, and was brought up to this court by a certiorari along with or as a part of the record. Where the facts are not in dispute, it is supposed that an issue of law is formed by a demurrer to the challenge. The decision of this issue by the court below, when the record is duly brought up, is to be reviewed and corrected, if erroneous, by the superior tribunal. This was done in the case of The People v. Vermilyea and others (7 Cowen, 108).

In opposition to the application to Mr. Justice Woodworth for the allowance of a certiorari, it was urged that the facts in that case made out only a challenge for favor, and that the judge at the trial was substituted in the place of triers by the consent of parties, and the question then raised was to be viewed in the same light as if it had been decided by the latter. The judge admits that the argument would be well founded if the facts had not established a principal cause of challenge. The only act that was done in that case to sub[*240]stitute the judge for the triors was to call on him to decide the challenge. It appears to me that we are required by the authority of that case, and from the very nature of the issue, it being an issue of fact, to say that the parties here have substituted the judge for the triers; and we are to view the rejection of this juror as if it had been the result of their finding. The challenge being for principal cause, went upon the record; the counsel for the people, if he had admitted the facts on which it rested, would have been considered as having demurred to it, but he did not admit them. He introduced evidence to show that the facts were not such as the defendant contended they were; he must, therefore, be considered as taking issue on them by a plea. According to the views of Mr. Justice Woodworth in the case of Vermilyea, the regular course there would have been for the defendant to state the fact on which he relied for cause, and then the prosecutor would probably have elected to plead or demur. Although, in point of fact, nothing was done in that cause towards forming an issue on the record more than was done in this, yet it was considered by the judge who allowed the certiorari, and by the court after the cause came here, as if a demurrer had actually been interposed to the challenge. It seems to me to be a matter of course, that if the challenge for principal cause goes on the record, it must be answered on the record; if demurred to, an issue of law is joined, and the judge must decide it; if the facts stated as the cause of challenge are controverted, an issue of fact is formed for the triers to pass upon. If neither of the parties ask for triers to settle the issue of fact, and submit their evidence to the judge and take his determination whereon, they can not afterwards object to his competence to decide that issue. The public prosecutor in this case, by offering to show that there was no cause for principal challenge, and that the facts amounted at most only to a challenge to the favor, is to be regarded as putting in issue the facts on which the challenge rested. By submitting his proof to the judge, without asking for treirs he substituted him in their place; we ought not, therefore, to interfere with his decision, if we would not with a like decision of treirs if the issue had been passed on by them. We are [*241] then to enquire if the evidence would have warranted triers to find in favor of the challenge for principal cause.

All the cases referred to on the argument as bearing on this point were ably reviewed in The People v. Vermilyea and others. The conclusion to which the court arrived in that case is thus announced by the learned judge who delivered the opinion: "Upon the reason of the thing, the authority of adjudged cases, and the general understanding of the bench and bar, I have no doubt that the law is not chargeable with such injustice as to warrant the admission of a juror who, from a knowledge of the facts, or information derived from those who knew the facts shall have formed or expressed an opinion." It appears that the opinion of the challenged juror in the case had been made up on hearing witnesses testify on a former trial concerning the transaction upon which he was called upon to pass. In another part of the same opinion the judge says, "I apprehend that no adjudged case can be found in any of the courts of this country where a juror has been admitted who has formed or expressed a decided opinion on the merits of the case."

Every change of facts does not necessarily call for a modification of a rule of law. However changed they may be, if the reasons for the rule remain it must be applied. Why is a juror who has formed and expressed an opinion upon the merits of a cause to be set aside in any case? It is because he is supposed not to be indifferent to the result of the matter to be tried. Such an opinion in presumption of law is the effect of partiality or prejudice operating on his mind, perhaps without his consciousness.

We are asked in this case to distinguish between an opinion formed by being an eye witness of a transaction, or by hearing the testimony of those who were such witnesses, and an opinion founded on rumors, reports and newspaper publications, and to say the former shall be evidence of partiality and the latter not.

If any distinction is to be recognized, I should be inclined to adopt the reverse of that contended for at bar. Shall a grand juror who has patiently listened to all the evidence on which an indictment is found, or one who witnessed the com[*242]mission of the offence be rejected when called on as a juror to try the accused; and shall another be received without exception, who has formed his opinion on idle rumors and unauthenticated reports? Of those who entertain an opinion of the guilt of the accused before his trial, they that believe on the slightest evidence, or no evidence at all, manifest, in my judgment, a state of mind less prepared to receive and allow a fair defence than those who believe on proof which furnishes prima facie evidence of guilt.

The ancient rule of law on this subject was, I apprehend, the very reverse of that now contended for, and I think was founded on better reasons. Hawkins says that it is a good cause of challenge on the part of the prisoner. that the juror hath declared his opinion beforehand that the party is guilty, or will be hanged, or the like; but he adds, if the juror made such declaration upon his knowledge of the cause, but not out of ill-will, it is no cause of challenge (Hawk. B. 2, ch. 43, § 28). If a juror says that he will pass for one party because he knows the verity of the matter, it was formerly no cause of challenge (1 Trial, per pais, 189). It is now conceded, and such were the decisions in the cases of Van Alstyne and Vermilyea, that if the opinion of the juror be founded on a knowledge of the facts, or on information derived immediately from those acquainted therewith, it constitutes a good objection to him. If in any case it would be safe to admit a juryman who had formed and expressed an opinion, the presumption of fairness and impartiality would certainly be stronger in favor of him who founds his belief on authenticated facts, than of him who has given credence to vague and groundless rumors. The remarks of Ch. J. Marshall in the trial of Burr (Burr's Trial, 1 vol. 370), are, in my opinion, very judicious. If it be said, he observes, that the juror has made up his opinion, but has not heard the testimony, such an excuse only makes the case worse, for if the man have decided upon insufficient testimony, it manifests a bias that completely disqualifies him for the functions of a juryman.

The law, I apprehend, attaches the disqualification to the fact of forming and expressing an opinion, and does not look [*243] beyond, to examine the occasion or weigh the evidence on which that opinion is founded. Such certainly were the views of the court in the case of Burr (1 Burr's Trial, 419). The cases of Blake v. Millspaugh (1 Johns. R. 316), and Pringle v. Huse (1 Cowen, 432), contain a similar doctrine.

There is, however, a distinction between positive and hypothetical opinions. It was recognized in the case of Durell v. Mosher (8 Johns. R. 405). The court in that case say that the juror had given no decided opinion on the merits; his declaration was hypothetical. The case of The People v. Van Alstyne, referred to by Mr. Justice Woodworth (6 Cowen, 565), was considered, on the argument by the counsel for the people, as a strong authority on this point. The late Ch. J. Spencer decided in that case, that if the opinions of the jurors were formed on mere rumors and reports, such opinions did not disqualify them. It appears to me enough is not said as to the particular character of those opinions, to enable us to determine the true point of that decision. After stating the case of Van Alstyne, along with that of Coleman v. Hagerman (both of which were manuscript opinions received from the late Ch. J. Spencer), Mr. Justice Woodworth remarks, that the principle upon which these cases were decided is, that an opinion formed and expressed by a juror is of itself evidence that he does not stand indifferent between the parties. If the case of Van Alstyne is to be understood as it was put to us on the argument, the deduction from it by the learned judge is almost the reverse of what it should have been. The counsel for the people understands that case to have been decided on the principle that an opinion formed and expressed by a juror is not of itself evidence that he does not stand indifferent, unless he has formed it from a knowledge of the facts attending the offence charged, or on the information of those who were acquainted with those facts. The statement of the case of Coleman v. Hagerman came from the late chief justice with that of Van Alstyne and was intended to present a similar principle of law. They must be reconciled; but that can not be done if the opinions of the jurors in the [*244] case of Van Alstyne were more than hypothetical, or, at most, slight impressions. A motion it seems was made for a new trial, in the case of Coleman v. Hagerman, on the ground that Graham, one of the jurors, had used language indicating an opinion that the defendant ought to be exemplarily punished. It appeared that this juror was wholly unacquainted with the parties till after the trial, and that the opinions expressed by him were founded on newspaper publications. The juror swore that he had no bias or partiality for either party, and personally knew nothing of the assault and battery complained of; yet the court unanimously awarded a new trial, on the ground that the juror did not stand indifferent in consequence of the opinions he had expressed. It would require considerable ingenuity to show any features in the situation of Graham to distinguish it from that of Martin. Martin founded his opinion on printed statements in newspapers and reports in conversation. Graham received his from newspaper publications. He was wholly unacquainted with the parties, knew nothing of the assault and battery, and solemnly deposed that he had no bias or partiality towards either party. Martin had heard nothing directly from the mouth of any of the witnesses to Morgan's abduction. In his own opinion he had no bias; for though the circumstances he had heard should be supported by proof, he had a fixed opinion of the defendant's guilt; yet, if they should be done away, he should not consider him guilty; if they should not be proved, his present belief would be removed. This part of the witness' account of the state of his mind is not remarkably perspicuous, yet, if I do not misapprehend it, he means to convey the idea that he had a belief of the defendant's guilt which was to be removed. Certainly it can not be pressed beyond the point to which Graham went, to do away the objection to him, when he deposed that he had no bias against, or partiality for either party. The authority of the case of Coleman v. Hagerman, well warrants the decision of the judge against the admissibility of Martin. Too much stress ought not to be laid on the juror's declaration, that if the circumstances on which his opinion was founded should not be supported by the evidence, [*245] his opinion of the defendant's guilt would be removed. The disqualifying bias which the law regards, is one which in a measure operates unconsciously on the juryman, and leads him to indulge his own feelings when he thinks he is influenced entirely by the weight of evidence (1 Chit. Cr. L. 443; Bac. Abr. tit. Juries, E. 5). If he is sincerely determined to discard his prejudices, he is not to be received because the law does not hold him capable of doing so. "He will listen," as Ch. J. Marshall has correctly observed, "with more favor to that testimony which confirms than to that which would change his opinion It is not to be expected that he will weigh evidence of argument as fairly as a man whose judgment is not made up in the case."

I have taken another view of this case on this point, which has brought me to the same conclusion. The issue on the challenge, as has been before remarked, was an issue of fact; and by the implied assent of the parties the judge took the place of the triers. If it should be conceded that his opinion was against the weight of evidence, his error or mistake would not furnish good ground for granting this motion. It is a well established principle of law, that if the jury, on the main issue in a criminal cause, find against evidence that the defendant is not guilty, there can not be a new trial; and to grant a new trial because the triers, or the judge acting in their stead, have not correctly weighed the facts involved in a collateral issue, would be a proceeding in utter disregard of that principle. I am therefore of opinion that the exception to the decision of the judge setting aside Martin, a juror challenged by the defendant, is not sustainable.

If I have not misapprehended the law applicable to the point I have considered, the charge of the judge to the triers of Clark, a juror challenged for favor, was unexceptionable, and their decision well warranted by the evidence.

It was agreed by the counsel for both parties that the talesmen should be treated as if challenged by each side, and that the evidence given should be considered as demurred to. The duty of passing on the jurors consequently devolved on the judge, but the right of excepting to his decision in any case was mutually reserved. Ashley, a juror who was [*246] examined under this agreement, showed what was sufficient, in my opinion, to sustain an objection to him, if urged by the defendant; but the challenge on his part was withdrawn. The counsel for the people insisted that, under the agreement, the only inquiry was, whether the juror stood indifferent between the parties. The judge decided that although the evidence shewed a bias against the defendant, he might waive the objection, and the other party could not insist upon it. There is no good reason, I think, to impeach the soundness of this opinion. It was competent for either party to forego any advantage which, by the terms of the agreement, he had secured to himself. It would be strange indeed if the rights that one party had under this agreement were not left to his own discretion, to be used or not, as should be seen fit, but must be enforced at the suggestion of the other party. The agreement, by no fair construction, could give to the prosecutor a right to insist on a challenge that, without such agreement, could legally come only from the defendant. It is also contended, on the part of the people, that the decision of the judge in relation to this juror was against the weight of evidence. The only direct evidence that had a tendency to raise a presumption of partiality in favor of the defendant was, that the juror, who was destitute of property, was a partner of James Mather, the defendant's brother, who was a wealthy man, and furnished the capital used in their business. I have seen no case where a juror has been set aside on such slight grounds. In the course of his examination, Ashley testified to a fact that may well be thought improbable, but we can not say that it was untrue. He had resided 18 months or more previous to the trial with James Mather, and yet he said the abduction of Morgan had not been the subject of conversation. If it would be reasonable to indulge a suspicion as to the correctness of this statement, still we look in vain for positive evidence sufficiently cogent to justify our interference with the decision of the judge by setting aside this juror. But, even if there was error here, it was upon a question of fact. The judge was in the place of the triers, and it would be against the principle before mentioned to grant a new trial on that ac[*247]count in a criminal case, where there has been a verdict of acquittal.

After Benjamin Wright, a witness called in behalf of the prosecution, had detailed with considerable particularity a conversation with the defendant about the abduction of Morgan, he said he had given all the conversation on the occasion referred to, which he could recollect, in words or in substance. The public prosecutor then proposed to ask the witness whether or not he in substance or effect addressed the defendant as one of those concerned in the transaction? This question was objected to and overruled. The question was then varied, and the witness was asked how he addressed the defendant in respect to his being one of the persons concerned? This question was also objected to and overruled. To each of these decisions an exception was taken. Considerable discretion is left to a judge who presides at a trial to regulate and control the examination of witnesses, and this court are cautious to avoid encroaching upon the proper exercise of this discretion. If, however, an established rule of law has been violated, the party injured has an undoubted right to relief, and the court feel no reluctance in such a case to grant it.

It is a mistake to suppose that such only is a leading question, to which yes or no would be a conclusive answer. A question is leading which puts into a witness' mouth the words that are to be echoed back, or plainly suggests the answer which the party wishes to get from him (1 Stark. Ev. 124). It is often a matter of extreme difficulty to distinguish such questions as ought not to be tolerated because they are leading, from those which, though in their form leading, are in effect only calculated to draw the mind of the witness to the subject of inquiry.

In passing on these questions, the court are to regard in some measure the mclinations of the witnesses, as well as the subject matter to which the question relates. If it is apparent that the witness is in the interest of the adverse party, the court will be justified in going so far as to permit the direct examination to take the character of a cross examination. If the question relate to introductory matter, and be designed to lead the witness with the more expedition to [*248] what is material to the issue, it is captious to object to it, even if it be leading. The pernicious influence of leading questions is most felt and to be feared when the object of inquiry is, to ascertain the details of a conversation, admission or agreement; and therefore more rigor is called for and justified in confining the direct examination in such cases to its appropriate rules. There is an essential difference between a direct examination and a cross examination; and the court ought not, except in peculiar cases, to permit the former to assume the character of the latter. The grounds on which the judge proceeded in overruling the questions proposed to be put to the witness Wright, must have been, I presume, that they were leading, or that the party by whom he was called were subjecting him to a cross examination. It is quite evident that the witness' memory as to the conversation was exhausted before those questions were proposed. The first appears to me to be a leading question. I consider it no more nor less than asking the witness if he had addressed the defendant as one of the abductors of Morgan. This seems to me to be very similar to asking a witness, after he had testified to all he knew as to the contents of a letter, if it had in it any thing about the writer being offered a certain price for a special article of merchandise. Such a question is admitted by Lord Ellenborough to be a leading one (Courteen v. Touse, 1 Campb. 43). The question in that case was allowed to be put to the witness by the party calling him, but it was for a particular reason which does not exist in this case. If the question put to Wright had been in the direct instead of the alternative form, it would clearly have been exceptionable; but by putting it in the alternative, the effect of it was not changed. As it was it plainly suggested to the witness the answer which the party wished to get from him. It therefore conformed to the very definition of a leading question.

After the question was overruled it was varied, and so varied, I think, as to assume the fact as true, which it was the object of the question to prove. It assumed that the witness did address the defendant as one of the persons concerned in carrying off Morgan, and only asked him to tell the man[*249]ner of the address. In this respect I hold the second question objectionable. Even on cross-examination it is not allowable to put a question which assumes a fact proved which is not (1 Stark. Ev. 133).

If I had serious doubts as to the correctness of the judge's decisions on these questions I should feel inclined to hesitate before granting a new trial. There should be a reasonable expectation that something will be gained by a further examination of the witness; such an expectation can scarcely be indulged here. It is conceded that the witness in this case was intelligent, and it was not pretended that he manifested the least reluctance to disclose whatever he knew; his memory was exhausted as to the details of his conversation with the defendant, so much so that he declared he had stated in words or in substance all he could recollect. The experiment of submitting such a witness to a sifting cross examination holds out but a faint hope that more truth would be elicited from him; but the right thus to examine him does not exist in this instance.

The public prosecutor objected to the right of the defendant to call and re‰xamine this witness in relation to the same subject on which he had been examined more than twenty-four hours before, and after several other witnesses had been called and examined subsequent to his first examination. When the examination is closed and the witness dismissed from the stand, it is a matter resting in the discretion of the court which receives the testimony, to allow of a further examination. I do not doubt that this discretion is often too indulgently exercised, but it is scarcely possible for this court to regulate it. Courts which try issues of fact must experience the inconveniences arising from too great indulgence in this respect, and on them devolves the duty of applying the corrective. At all events, it is a matter too purely discretionary to warrant the interference of this court, unless it should be in a very flagrant and oppressive instance. The case now presented to our consideration is not of that character.

[*250] In examining the various grounds on which this motion for a new trial is placed, I am brought to the consideration of the judge's decision excusing Daniels, a witness on the part of the prosecution, from answering the question put to him, on his allegation that the answers might expose him to infamy, or implicate him in the transaction relative to William Morgan. A distinction is to be taken as to the rule of law between a question, the direct answer to which may fix a stain of infamy on the character of the witness, and a question the answer to which may have a tendency to implicate the witness in a criminal charge for which he may be prosecuted. The rule applicable to the first question as laid down by Mr. Peake is, that a witness shall not be rendered infamous or even disgraced by his own examination as to facts not connected with the cause in which he is examined (Peake Ev. 202). In some of the elementary treatises on evidence the rule is not qualified by the last clause; but in all the cases I have seen the question, the answer to which might, as it was alleged, disgrace the witness or render him infamous, did not relate to a matter directly connected with the merits of the cause (4 Esp. 226; 13 Johns. R. 82; 1 Phil. on Ev. 207; 1 Starkie Ev. 137). The object of the interrogatory was to impair the credibility of the witness.

If a witness is allowed to decline answering when examined for one purpose, because the answer may show him infamous, perhaps it may be a refinement to hold that he is debarred the same privilege when exposed to the same result because the question is material to the merits of the cause. If the objection to answer be placed, as it undoubtedly is, on the ground that the witness may be disgraced thereby, his privilege attaches when that result will be produced by the answer. It is not reasonable that the right to this privilege should depend on the bearing of the testimony or any other matter. But where the privilege arises from an apprehension that the answer will expose the character of the witness to the reproach of moral turpitude, as distinguished from the danger of a criminal prosecution, it is not enough for the witness to allege that his answer will have a tendency to expose him to infamy or disgrace. The question must be such [*251] that the answer to it, which he may be required by the obligation of his oath to give, will directly show the infamy, and the court must see that such will be the case before they will allow the excuse to prevail. No direct answer that Daniels could have given to the questions put to him could have fixed on him the stain of infamy. The first question put to him was, whether he was at a particular house on a particular day; a day when Morgan, as it was alleged, was brought there. The second was, whether a hack or covered carriage was driven to or arrived at that house on the evening of that day. Whatever answer he might give to these questions, no infamy or disgrace could thereby attach to him as the immediate result to the answer. Whether the rule be as laid down by Mr. Peake, or more general and extensive in its operation, no excuse to exonerate the witness from answering these questions could be drawn from it.

It may be urged in behalf of a witness, and I think it was so put to us on the argument in this case, that if the answer to the question, provided the witness was still liable to a criminal prosecution, would supply a link in the chain of testimony which might be the only one undiscovered and wanted to sustain a criminal proceeding against him, it might, though exempt from a prosecution, supply one of the facts by which the infamy of being concerned in a criminal transaction would be established and publicly proclaimed to the world. Inquisitive curiosity may go as far in bringing together scattered facts to trace out offenders as a judicial investigation, but the law will not look upon what may or may not be done as private feelings shall dictate, as it views what it commands to be done. It will not presume that an investigation will be carried through a series of transactions, in order to develop the infamy of an individual where there is no obligation of duty to do so; but it will presume, where a fact is disclosed which will contribute to a conviction of an offender, that the officers to whom is committed the administration of justice will use that fact in the detection of guilt. The distinction which I have endeavored to point out between the rule which protects the witness from being compelled to proclaim his own infamy, and that which secures [*252] him when on the stand from becoming the unwilling instrument of his own conviction, is not new or unsupported by authority. In Macbride v. Macbride (4 Esp. Rep. 242), the defendant proposed to asked one of the witnesses if she did not live in a state of concubinage with the plaintiff. Lord Alvanley interposed and prevented the putting of the question. He observed, "I do not go so far as others may, I will not say that a witness shall not be asked what may tend to disparage him. I think those questions only should not be asked which have a direct and immediate effect to disgrace or disparage the witness." It is said by Lord Eldon (1 Merivale, 400), "Upon the question of character, I hold that supposing a man to be liable to a penalty or forfeiture, provided he is sued within a limited time and that the suit is not commenced till after the limitation expires, he is bound to answer fully, not-withstanding his answer may tend to cast a very great degree of reflection upon his character and conduct."

A more restricted signification was given by the defendant's counsel on the argument to the word criminate than the cases warrant. In them, the expression that a witness can not be compelled to answer a question that criminates or has a tendency to criminate himself, means, that he is not required to answer a question if by so doing he must disclose what will show or has a tendency to show that he is guilty of a crime for which he is yet liable to be punished. So it was used in the case of Burr (Burr's Trial, 424), in Cates v. Hardazes (3 Taunt. 424), and in Parkhurst v. Lawton (2 Swanston, 215).

The principal reliance of the defendant to sustain the determination of the judge, is placed, I presume, on the rule of law that protects a witness in refusing to answer a question which will have a tendency to accuse him of a crime or misdemeanor. Where the disclosures he may make can be used against him to procure his conviction for criminal offence, or to charge him with penalties and forfeitures, he may stop in answering before he arrives at the question, the answer to which may show directly his moral turpitude.

The witness, who knows what the court does not know, and what [*253] he can not communicate without being a self accuser, is to judge of the effect of his answer, and if it proves a link in the chain of testimony, which is sufficient to convict him, when the others are made known, of a crime, he is protected by law from answering the question. If there be a series of questions, the answer to all of which would establish his criminality, the party can not pick out a particular one and say, if that be put the answer will not criminate him "If it is one step having a tendency to criminate him, he is not compelled to answer" (16 Vesey, 242). The same privilege that is allowed to a witness, is the right of a defendant in a court of equity when called upon to answer. In Parkhurst v. Lawton, before referred to, the chancellor held that the defendant "was not bound to answer the question, the answer to which would criminate him directly, but not any which, however remotely connected with the fact, would have a tendency to prove him guilty of simony." The language of Ch. J. Marshall on Burr's trial is equally explicit on this point. "Many links," he says, "frequently compose that chain of testimony which is necessary to convict an individual of a crime." It appears to the court to be the true sense of the rule, that no witness is compellable to furnish any one of them against himself. It is certainly not only a possible but a probable case, that a witness by disclosing a single fact may complete the testimony against himself, and, to every effectual purpose, accuse himself as entirely as he would by stating every circumstance which would be required for his conviction. That fact of itself would be unavailing, but all other facts without it would be insufficient. While that remains concealed in his own bosom he is safe: but draw it from thence and he is exposed to a prosecution. The rule which declares that no man is compellable to accuse himself, would most obviously be infringed by compelling a witness to disclose a fact of this description" (1 Burr s Trial, 244).

The object of the two rules I have been considering is very different. The one saves the witness from being the herald of his own infamy; the other from himself furnishing the means of his punishment. The confounding of these rules would in my opinion produce a strange result. Would it be [*254] pretended that a man who had been convicted and punished for a particular offence, and was called on as a witness against his accomplice, would be excused from testifying to any of the series of facts in which he had participated with the accused, the proof of which constituted the evidence by which his guilt was made manifest, because his answer has a tendency to show that he had committed the offence? There could be nothing in the situation of such a witness, or in that of any other witness who could not be exposed to a prosecution, which requires the application of a rule of law designed to protect men from becoming instrumental in bringing down upon themselves the penalties of violated laws.

My conclusion is, that, where a witness claims to be excused from answering a question because the answer may disgrace him, or render him infamous, the court must see that the answer may, without the intervention of other facts, fix on him moral turpitude. Where he claims to be excused from answering because his answer will have a tendency to implicate him in a crime or misdemeanor, or will expose him to a penalty or forfeiture, then the court are to determine whether the answer he may give to the question can criminate him directly or indirectly, by furnishing direct evidence of his guilt, or by establishing one of many facts, which together may constitute a chain of testimony sufficient to warrant his conviction, but which one fact of itself could not produce such result; and if they think the answer may in any way criminate him, they must allow his privilege, without exacting from him to explain how he would be criminated by the answer which the truth may oblige him to give. If the witness was obliged to show how the effect is produced, the protection would at once be annihilated. The means which he would be in that case compelled to use to obtain protection, would involve the surrender of the very object for the security of which the protection was sought. I am therefore of opinion that Daniels should have been required to answer the questions put to him, unless the answers might have had a tendency to implicate him in a criminal offence for which he was then liable to be prosecuted.

[*255] Daniels could not have been indicted for conspiring to carry off or to imprison Morgan, nor for committing an assault and battery on him, because the statute of limitations furnished a bar to the proceedings. Sup pose a more disastrous fate attended Morgan than has yet been brought to light; suppose he was murdered—a catastrophe far from being too improbable at this time to be assumed as a ground for reasoning, or illustration of an argument— all those who were engaged in his abduction would be implicated in that murder, those who were present at its consummation as principals, and all others as accessories before the fact. Would their offence be barred by the statute of limitations? All suits, informations and indictments for any crime or misdemeanor, murder excepted, must be prosecuted within three years after the offence is committed (1 R. L. 187). It is contended, on the part of the people, that this exception is to be rigidly construed, and should be taken to include only the offence of principals to a murder, and not accessories before the fact. Whatever is murder is included in it. If the crime of an accessory to a murder before the fact is not a murder, it is without a specific name. Homicide is a generic term, within which the offence of an accessory to a murder must fall; but I have never seen an enumeration of the several species of offences included in it which will embrace this crime, if it be any thing different from murder. It can be neither manslaughter nor excusable or justifiable homicide.

By the act concerning murder (1 R. L. 66), all willful killing by poisoning is declared willful murder of malice prepense, and the offenders therein, their aiders, abettors, procurers and counselors, are to suffer death, and forfeit in every behalf, as in other cases of willful murder of malice prepense. In the act declaring the punishment of certain crimes, it is provided that every person convicted or attainted of any kind of murder, or of aiding, abetting or procuring any kind of murder to be committed, shall suffer death for the same (1 R. L. 407). Principal and accessories are grouped together in these statutes, without any distinction as to their punishment or the nature of their offence. It is beyond a doubt that in the Revised Statutes the offence of an accessa[*256]ry to a murder before the fact comes under the denomination of murder. They speak of no such offence as distinct from it. The killing of a human being by the act, procurement or omission of another, in cases where such killing shall not be murder according to title 1 of chap. 1, concerning crimes and punishments, is declared to be justifiable or excusable homicide or manslaughter (2 R. S. 660). What is justifiable or excusable homocide, and what is manslaughter, is there defined, and so defined as to exclude the idea that the crime of an accessory to a murder before the fact can be any thing else but murder. Writers on criminal law make some difference between the offence of a principal and that of an accessory, but this is chiefly as to the order and mode of proceeding against them. Ordinarily, the accessory can not be convicted before the principal. They may, however, be joined together in the same indictment, and tried at the same time; and this mode of procedure is recommended by Mr. Justice Foster as the most eligible (Foster, 365). It seems to be settled that if a person be indicted as principal and acquitted, he can not be again indicted as an accessory before the fact (1 Hale's P. C. 626 2 Hawk. 244; 1 Russell on Crimes, 51). This must proceed on the ground that the second indictment is for the same offence contained in the first (Kel. 22, 6). Mr. Justice Foster, however, does not so view it. He is of opinion that the offence of the principal and accessory specifically differ; they may specifically differ, and yet both be murder. Murder by poisoning is different from that by shooting, and, as we have seen, the statute implies that there are several kinds of this crime. Neither the statute nor common law has attempted to characterize the offence of an accessory by a specific name different from that which is applied to the crime of the principal, or to distinguish him in punishment from the doom that awaits the principal. There is no settled grade of enormity between them. He who conceives the mischief and sets the assassin to work is as wicked and deserves as much severity from the law as he that strikes the fatal blow. It is incontrovertible that he who procures a felony to be committed is a felon, and if the felony be a murder he is a murderer. I can not find in the [*257] statute of limitations any thing from which I can infer that the legislature intended that any length of time should place an accessory to a murder before the fact beyond the reach of punishment.

If I am correct in my conclusion that the offence of accessories to a murder before the fact is not included within the statute of limitations, it is certainly not improbable that the witness Daniels might have had a fair claim to the privilege he asserted and the court yielded to him. After what took place at the trial, it is not illiberal to suppose that Daniels was involved in the transaction to which the defendant was supposed to be a party. The mysterious obscurity that hangs over the termination of this affair justifies a well-founded suspicion that Morgan came to an untimely end. If this conjecture is well warranted (and whether it is so or not the witness may know, but can not be required to explain), the court must see that his privilege to decline answering is as likely to exist now as at any period before the statute attached to the minor offences of conspiracy and false imprisonment. I think the judge could not safely say that the privilege was claimed by the witness in this case as a mere subterfuge to suppress the truth, and thereby aid the escape of the guilty.

The judge properly refused to permit the inquiries which the public prosecutor proposed to make for the purpose of sustaining the character of Gregory, a witness called on the part of the people. Several persons had testified to his bad character. It was then proposed, by way of supporting his credit, to introduce witnesses to show that the reports against him had originated from a particular party or body of men, and were founded on a particular transaction, which had been intentionally perverted to injure his character. I think this was asking for a greater latitude of inquiry than it would be safe to grant. If the main issue formed by the pleadings is to be tried with reasonable expedition, collateral issues must be avoided as much as possible. These issues are more likely to multiply in ascertaining the interest or testing the credibility of witnesses, than in any other incidents of a trial. The rule which, every thing considered, has been found safest on this subject is, to allow general evidence to be given of [*258] general character. Starkie says, that the proper question to be put to a witness who is called to impeach another is, whether he would believe him on oath (1 Stark. on Ev. 147). Phillips states that the mode of inquiry is to ask witnesses whether they have the means of knowing the general character of the former witness, and whether, from such knowledge they would believe him on oath (1 Phil. Ev. 212). When general evidence of this nature is given, impeaching the credit of a witness, the opposite party may go into a cross examination to ascertain the grounds of the unfavorable opinions, and in doing that he may interrogate the witnesses as to their opportunities of knowing the character of the impeached witness, how long and how generally the unfavorable reports have prevailed, and from what particular individuals they heard them. This range of cross examination would seem to be sufficient to enable the party calling the impeached witness to show, if such was the fact, that the imputed bad character was artificial and created to answer a particular purpose. To authorize further inquiries would very much embarrass and delay trials, and probably, in no respect subserve the ends of justice. If the public prosecutor had been permitted in this case to introduce evidence to show that the reports originated with a particular party of body of men, the defendant must have been allowed to controvert the fact by the testimony of other witnesses. If it was allowable for one party to show that the bad character arose from a particular transaction which did not justify the disparaging reports, the other party must be allowed to show that the nature of that transaction was such as to warrant them. It was the duty of the judge to exclude these collateral inquiries.

It is contended that the judge erred in instructing the jury that to convict the defendant they must be satisfied that he was a party to the conspiracy at its formation originally, and that his rendering assistance in carrying it into execution, after it was formed, would not make him a party to it.

The proof established a conspiracy in or about Canandaigua to take Morgan from the jail at that place, and to carry him away. There was no evidence to show that the defendant was then a party to it. His first visible connection with those who commenced the illegal act, if he was at all con[*259]nected with them, was after Morgan had been removed seventy miles from Canandaigua.

The language of the charge warrants the belief that the judge thought there was but one conspiracy proved. There is no proposition better established than that the venue in a criminal case must be laid in the county where the offence was committed. In indictments for conspiracy, the venue may be laid in any county in which it can be proved that an overt act was done by any one of the conspirators in futherance of their common design (Archb. Crim. P. 6). Where a conspiracy was formed at sea, and an overt act done in the county of Middlesex, it was held that the venue was properly laid in that county (The King v. Bresac & Scott, 4 East, 164). So in the case of The King v. Bowes and others, referred to in The King v. Bresac & Scott, the conspirators were tried in Middlesex, though there was no proof of an actual conspiracy within that county, and the acts and doings of some of them were wholly in other counties. All these cases must proceed, I think, on the principle that the crime is committed where the overt act is performed. I admit that it is the illegal agreement that constitutes the crime, when that is concluded the crime is perfect, and the conspirators may be convicted if the crime can be proved. No overt act need be shown or even performed to authorize a conviction. If conspirators enter into the illegal agreement in one county, the crime is perpetrated there, and they may be immediately prosecuted; but the proceedings against them must be in that county. If they go into another county to execute their plans of mischief, and there commit an overt act, they may be punished in the latter county without any evidence of an express renewal of their agreement. The law considers that wherever they act, there they renew, or perhaps, to speak more properly, they continue their agreement, and this agreement is renewed or continued as to all whenever any one of them does an act in furtherance of their common design. In this respect, conspiracy resembles treason in England, when directed against the life of the king. The crime consists in imagining the death of the king. In contemplation of law, the crime is committed wherever the [*260] traitor is, and furnishes proof of his wicked intention by the exhibition of any overt act.

If the proposition which I have stated relative to conspirators be correct (and there is no accounting for the decisions on this subject unless it be upon the principle I have mentioned), it necessarily follows that whenever a new party concurs in the plans originally formed, and comes in to aid in the execution of them, he is from that moment a fellow conspirator. He commits the offence whenever he agrees to become a party to the transaction, or does any act in futherance of the original design.

If this conclusion is properly deduced from the authorities referred to, the judge erred in saying to the jury that although it should satisfactorily appear that the defendant assisted in carrying the conspiracy into execution after its formation, that fact would not make him a party to it. This doctrine of the judge would seem to render it impossible for a new party to be added to the original conspirators. Can it be true, that if two men conspire to commit a criminal act, and afterwards twenty others co”perate with them in executing the plan, these last are not conspirators? If a series of acts are to be performed with a view to produce a particular result, he who aids in the performance of any one of these acts in order to bring about the result, must have the intention to effectuate the end proposed; and if he operates with others, knowing them to have the same design, there is in fact an agreement between him and them; his criminal intent is not to be distinguished from the intent of those who first formed the plans of the conspiracy If two thirds of the journeymen of any particular mechanic art in a city should agree to turn out for higher wages, and after the agreement was formed the other third should join them, would those who last acceded to the design be less exposed to the penalties of the law than those who originated it? Would not their concurrence, without any particular proof of an agreement to concur, be conclusive against them? If it had been proved that the defendant in this case had met persons in Orleans county who had Morgan in their custody, and on being made acquainted with their views had ex[*261]pressed his approbation of their original undertaking and given them his aid in accomplishing it, would he not have been involved in the conspiracy? I can not bring my mind to entertain a doubt on the subject. But it may be said that the case supposed shows a new conspiracy. I concede that it does; but it shows a new conspiracy no more than one would be shown by proving that the defendant assisted in carrying the conspiracy into execution after it was formed. It may be that the judge only meant to say, that the acts of the defendant being merely in furtherance of the design of the conspirators, would not make him a party to the conspiracy. They certainly would not, unless he knew of the designs of the conspirators, and intentionally lent his aid to them. It is settled on good authority that the fact of conspiring need not be proved (2 Day's Rep. 205; 1 Wm. Black. Rep. 392). If parties concur in doing the act, although they were not previously acquainted with each other, it is a conspiracy (per Lord Mansfield, 1 Hawk. ch. 72, § 2, note). Lord Kenyon says, in The King v. Hammond & Webb (2 Esp. Cas. 719), "If a general conspiracy exists, you may go into general evidence of its nature and the conduct of its members, so as to implicate men who stand charged with acting upon the terms of it, years after those terms have been established, and who reside at a great distance from the place where the general plan is carried on." These cases show that all who accede to a conspiracy after its formation and while it is being executed, become conspirators. I am of opinion that the judge misdirected the jury as to the law, when he stated to them that the defendant, if he was not a party at the formation of the conspiracy originally, would not become such by assisting to carry it into execution.

But under the circumstances of this case, I entertain serious doubts whether the court ought (assuming that it has the right), to grant a new trial for this misdirection. In ordinary cases, the court do not grant a new trial if the judge has misstated the law to the jury, unless it is probable that the result of the trial has been thereby changed. In criminal cases, where the defendant has once been acquitted, the re[*262]luctance to grant new trials has ever been very great. It is a conceded rule of law, not to grant a new trial in such cases because the verdict is against evidence. Whether a new trial can be granted where there has been an acquittal without infringing the rights of the defendant, even where the court have misdirected the jury, is now an unsettled question. If the power exists it ought not to be exercised, unless it is reasonable to infer that the misdirection of the court has been the cause of the acquittal. Was the verdict of acquittal in this case the result of the judge's error as to the law? I do not believe that we should be warranted in saying that it was. I do not, however, mean to be understood, that I approve of the verdict of the jury. This court look at the facts only with a view to ascertain and settle the questions of law that arise in the case.

There is no complaint of the judge's charge, so far as it related to the count for the false imprisonment. On that count the jury acquitted the defendant. If they did not think the evidence sufficient to convict him of falsely imprisoning Morgan, they could not, consistently, on the same evidence convict him of conspiring to imprison him. The conspiracy, so far as it could affect the defendant, was made out by the proof of acts as distinguished from an agreement; and if they were not sufficient to establish the charge of a false imprisonment, they were insufficient to establish that of a conspiracy. The evidence relied on to convict the defendant was, that he drove the carriage which, it was supposed, contained Morgan, knowing that he was in it, and detained there against his will. If the testimony did not establish that fact, there was not sufficient proof to warrant a conviction for a conspiracy, and the jury by acquitting the defendant of the charge of false imprisonment, have said the fact was not established. Considering the character of the evidence given, the acquittal on the count for the false imprisonment necessarily involved the acquittal on that for a conspiracy under proper instructions as to the law applicable to the latter charge. I can not, therefore, persuade myself that the error of the judge contributed to the acquittal of the defendant, and I am against granting a new trial on that account.

[*263] Something was said on the argument in favor of granting a new trial because the verdict was against evidence, but this point was properly yielded by the counsel for the people. The law is well settled, as I have had occasion in the course of this opinion to remark, that a new trial can not be granted where there has been an acquittal because the verdict is against evidence. I have now disposed of the points made on behalf of the motion for a new trial.

There were other views presented to us by the defendant's counsel, and fully argued on both sides, on which it was expected that the court would express an opinion. The conclusion to which I have arrived in examining the grounds of the motion for a new trial does not render it necessary that any other point should be considered; but as there are several other causes to be tried in which it is highly probable that the questions raised by the defendant here will arise, it may be desirable in relation to them that the court should express an opinion on the other points made in this cause. In doing this we are not anticipating questions. The points we are about to examine were not only raised in this case, but fully and ably argued under a belief that it would be necessary to pass on them in deciding the present motion.

It is insisted that the indictment in this case is insufficient because it does not contain a particular specification of the crime, and does not set forth the overt acts relied on as evidence to manifest the defendant's guilt. The first count charges the defendant with having conspired and combined, &c., at Gaines, in the county of Orleans, with divers persons unknown, unlawfully to harass, vex, oppress, assault, and falsely imprison one William Morgan, &c. The decision in Lambert's case (9 Cowen, 578), was, that if an indictment for a conspiracy does not set forth the object specifically, and show that such object is a legal crime, it should state particularly the means intended to be used by the conspirators, and show that those means are criminal. This rule has not, though the defendant's counsel supposed it had, a particular application to the case before us, because this indictment sets forth a legal crime as the object of the conspiracy, the false imprisonment of a citizen. The crime explicitly ap[*264]pears. In relation to stating overt acts in the indictment, I apprehend the counsel for the defendant has been misled as to the law by assimilating conspiracy to treason. In several respects there is an analogy between them, but the necessity of setting forth overt acts in an indictment for treason arises from statutory provisions which were not made, as I conceive, in affirmance of the common law. The offence in treason is an act of the mind, but as it could be proved only by external acts, there was much reason for requiring (as several acts of parliament have done) some of those acts to be stated. This is a deviation from the common rule in pleading, which requires the crime or cause of action to be stated, and not the evidence by which it is to be proved. The compassing the death of the king is the treason; the overt acts are the means made use of to effectuate the intentions or imaginations of the heart. The overt acts, as they are the only things that can be proved, are the charges to which the accused is to answer (Foster, 194). No person can be convicted of treason against whom an overt act can not be proved, but this is not the case in conspiracy; it is not a mental offence; it does not consist in intents and imaginations. It exists where there are no overt acts other than the agreement. I have alluded already to several authorities which declare that conspirators may be convicted if no act has been done towards the accomplishment of their designs. This certainly could not be the case if an overt act must be set forth in the indictment. Mr. Chitty says, it is usual to frame the indictment stating the conspiracy, and then showing that in pursuance of it certain overt acts were done, but it is holden sufficient to state the conspiracy alone (3 Chit. C. L. 909; 2 Lord Ray. 1167, S C.; 1 Salk. 174). Starkie declares, that a general averment that the defendant did conspire, &c., to accomplish an object apparently criminal, is sufficient without showing in what manner and by what means the conspiracy was to be produced. In strictness, it is not necessary to allege any overt act done in pursuance of the criminal design (Stark. C. Pl. 170, 1). In Rex v. Kinnersly and Moore (1 Str. 193), it was decided that no overt act need be laid in the indictment, and several [*265] cases are there referred to wherein such indictments were held good

It is supposed that a conspiracy to commit a crime is merged in the crime when the conspiracy is executed. This may be so where the crime is of a higher grade than the conspiracy and the object of the conspiracy is fully accomplished; but a conspiracy is only a misdemeanor, and when its object is only to commit a misdemeanor it can not be merged. Where two crimes are of equal grade there can be no legal technical merger. This court had this question under consideration in the case of Bruce, and there intimated an opinion that a conspiracy to commit a misdemeanor was not merged in the misdemeanor when actually committed.

As those who were concerned with the defendant, if he was one of the conspirators, or some of them, were known (as it appeared on the trial they were) to the grand jury when the indictment in this case was found by them, the allegation therein that the defendant conspired with persons unknown is improper, it is said, and that on such an indictment the defendant can not be convicted. An indictment should contain so much certainty as clearly to designate not only the particular kind of offence, but the specific criminal act for which the accused is to answer. If there has been a murder, the name of the person killed must, if it can be ascertained, be stated in the indictment. This the accused may reasonably require, that he may know what he has to answer; but if he had associates, I apprehend that they need not be named, because a charge of that nature may be made sufficiently certain without a disclosure of their names. So if a person is charged with a larceny, the indictment ought to show who was the owner of the goods stolen, that the accused may know for what act he has to answer. But in a charge of conspiracy it seems no more necessary to specify the names of the defendant's coadjutors than in an indictment for an assault and battery to name others besides the accused who were concerned in the trespass, if the fact were really so. In Kinnersley and Moore a case is mentioned where this point was directly passed on. The bill pre[*266]sented to the grand jury charged, that Herne with A. and cum multis aliis conspired to accuse B. of a felony. The grand jury returned the bill with an ignoramus as to A. Then the charge against Herne as presented by the indictors was, that he with many others conspired, &c. The indictment was objected to as insufficient on a motion to arrest the judgment; but the court denied the motion, and said the indictment was sufficient, it being found that Herne with many others did conspire, &c., and it might have been so laid at first. Where a person was indicted for engrossing hay and straw, and the act was charged to be done by him and twenty-seven others, an exception was taken to the indictment, that the names of each person of the twenty-seven was not set forth; it was overruled on the ground that it was not necessary to set out their names (Cro. Car. 380). It does not appear that the persons not named were unknown, or that the indictment in either case charged them to be unknown. I am satisfied on reason and authority, that the objection taken to the indictment in this case on this account is not sustainable.

The right of a court to grant a new trial in case the defendant has been acquitted, is called in question by the defendant. That such right does not exist where the ground of the application is that the finding is against evidence, is conceded; but whether a new trial can be granted where the acquittal has resulted from the error of the judge in stating the law to the jury, seems to be involved in much doubt. It is a very important question, and not necessary to be now settled; the court have, therefore, deemed it discreet to forbear expressing an opinion on it till a case shall arise requiring them to do so.

Motion for a new trial denied.