The constitution of this state, adopted in 1846, declares, however, that no person shall be rendered incompetent to be a witness on account of his opinions on matters of religious belief. (n) (4) An objection of that sort will, therefore, in future, only affect the credibility of the witness.

After the incompetency of the witness from defect of religious belief is satisfactorily established, by proof of his declarations out of court, he will not be permitted to deny or explain such declarations or his opinions, or to state his recantation of them when called to be sworn. But he may be restored to his competency on giving satisfactory proof of a change of opinion before the trial, so as to repel any presumption arising from his previous declarations of infidelity. (s)

(n) Const., art. 1, sec. 3.

(s) 18 John. R., 98. 4 Day, 51.

(4) The provision in the constitution of 1867 is nearly identical. It is as follows: "No person shall be incompetent to be a witness on account of his religious belief." (Const., art. 1, § 3.)

MODE OF ADMINISTERING AN OATH.

The provisions of the Revised Statutes, in respect to the mode of administering an oath to a witness, and the ceremonies to be observed in swearing, were repealed by the act of 1877, ch. 417. (3 R. S., 7th ed., 2391.)

The Code of Civil Procedure contains these provisions:

General mode of swearing.]-The usual mode of swearing a witness, now practiced, by the person who swears laying his hand upon and kissing the gospels, must be observed, where an oath is administered, except as otherwise specially prescribed in this article. (§ 845.)

Kissing the gospels, when dispensed with.]-The oath must be administered in the following form, to a person who so desires, the laying the hand upon and kissing the gospels being omitted: You do swear in the presence of the ever living God." While so swearing, he may or may not hold up his hand, at his option. (Id., § 846.) Affirmation, when to be made.]-A solemn declaration or affirmation, in the following form must be administered to a person who declares that he has conscientious scruples against taking an oath, or swearing, in any form: "You do solemnly swear, sincerely declare and affirm." (Id., § 847.)

Other modes of swearing.]-If the court, or officer, before which or whom a person is offered as a witness, is satisfied that any peculiar mode of swearing, in lieu of, or in addition to, laying the hand upon and kissing the gospels, is in his opinion, more solemn and obligatory, the court or officer may, in its or his discretion, adopt that mode of swearing the witness. (Id., § 848, as amended by Laws of 1877, ch. 416.) Swearing persons not Christians.]—A person, believing in a religion other than the Christian, may be sworn according to the peculiar ceremonies, if any, of his religion, instead of as prescribed in section 845 or section 846 of this act. (Id., § 849.)

Court may examine witness.]—The court or officer may examine an infant, or a person apparently of weak intellect, produced before it or him, as a witness, to ascertain his capacity and the extent of his knowledge; and may inquire of a person produced as a witness, what peculiar ceremonies, in swearing, he deems most obligatory. (Id., § 850.)

Swearing falsely in any form.]—A person swearing, affirming or declaring, in any form, where an oath is authorized by law, is lawfully sworn and is guilty of perjury, in a case where he would be guilty of the same crime, if he had sworn by laying his hand upon and kissing the gospels. (Id., § 851.)

3d. Incompetency from interest.] It is a general rule of evidence, not to admit the testimony of a witness who is to be a gainer or loser by the event of the cause, whether directly and immediately, or consequentially only. (t) The interest to disqualify, must be some legal, certain and immediate interest in the event of the suit, or in the record as an instrument of evidence available on future occasions, in support of the witness's own interest. (u) A liability to a remote action or prosecution, will not make the witness incompetent. (v) Nor will a witness be excluded because he * stands in the [*423] same situation as the party in whose favor he is called ; (w) or because he may have wishes or a strong bias on the subject-matter of the proceeding, or may expect some benefit from the result of the trial. Such circumstances only affect his credibility. (x) The courts have resolved, in a variety of cases, that questions of interest shall, as far as possible, go to the credit rather than to the competency of a witness. (y)

A witness who believes himself interested, but is not so in fact, is competent; as one who believes himself to be under an obligation of honor to indemnify bail. (2) Nor does an actual honorary obligation constitute a disqualifying interest in the witness. (a)

Where a person is equally interested in the event of the trial, whether the verdict be for the plaintiff or defendant, so as upon the whole to make him indifferent, he will be competent to give evidence for either party. (b) If a person makes himself a party in interest for the purpose of depriving a party to the suit of his testimony, this ought not to exclude him. (c)

A person entitled to a reward upon the conviction of the defendant, is not thereby rendered incompetent to give evidence against him; whether the reward be given by proclamation, by statute or by a private person. (d) But informers, who are entitled to a part of the penalty, are incompetent witnesses to support a conviction ; (e) where the penalty is recoverable by the indictment itself. (ƒ) But it would seem otherwise, where a distinct suit for the penalty is necessary. (g)

On an indictment for forcible entry and detainer, the party aggreived is not a competent witness; for in case of a conviction, he will be entitled to restitution. (h)

But it is a general rule that in criminal prosecutions the party injured may be a witness. () Thus, it is the constant practice on an indictment for robbery, to admit the evidence of the party robbed. (k) So the party injured is allowed to be a witness on an indictment for perjury, whether the suit in which the perjury was committed, either at law or in equity, be at an end or not. (7) And in cases of forgery, the rule is established in this state, that the person whose name has been forged is a competent witness, on the trial of an indictment, to prove the forgery. (m)

Where a prosecutor, in order to deprive the defendant of a witness, joins both in the indictment, if it does not appear [* 424] that there is sufficient evidence to put the person improperly joined, on his defense, it is the duty of the court to order him to be discharged before the evidence is closed; (n) so as to give the other defendant an opportunity to avail himself of his testimony. (o) (5) But on an indictment against two for a felony

(h) 1 Ry. & Moo. N. P. Cas., 242. 2 Hayw., 340.

(i) 2 Russ. on Cr., 602. 2 Stark. Ev., 771.

(k) 1 Phil. Ev., 112.

(1) 4 East, 572. 2 Russ. on Cr., 602.

(m) 6 Cowen, 27. 4 John., 302.

(n) Gilb. Ev., 131. 1 Holt, 275. 2 R. S., 735, § 19; 3 id., 7th ed,. 2569.

(0) Id., ib. Bull. N. P., 285. Fost., 313, n.

(5) Where two or more persons, jointly indicted, are all put on trial together, neither one of them can, until discharged from the indictment, be a witness for or against the others. (Wixson v. People, 5 Park., 119.) Where they are tried separately, one of the defendants, not on trial, may, by permission of the court, be called and examined as a witness on behalf of the people, against the defendant on trial; though the person so called and examined has not been convicted nor acquitted, nor otherwise discharged. But a defendant in a joint indictment can not, while the indictment is pending against him, be called as a witness for his co-defendants, though he be tried separately. (Id.) Though it rests in the discretion of the court to decide whether a co-defendant may, on a separate trial, be called as a witness in behalf of the people, no formal application is necessary. Where a co-defendant was offered, on the trial, as a witness, and was objected to on the ground that he was a co-defendant, and could not be sworn, except by special leave of the court, and the objection was overruled by the court, the decision was held to be equivalent to an order made on a special application to the court. (Id.) Where one of the defendants is a competent witness on behalf of the people, the wife of such defendant is also a competent witness. (Id.) A co-defendant, who has pleaded guilty, is a competent witness for the prosecution. (Mackesey v. People, 6 Park., 114.) And it has been held, in Connecticut, that persons joined in a criminal complaint, against whom the state introduces no evidence, are competent witnesses for their co-defendants. (State v. Shaw, 1 Root, 134.)

Where one of two defendants, jointly indicted for felony, is separately tried, in accordance with his own demand, his co-defendant is not a competent witness in his favor. (McIntyre v. People, 9 N. Y., 38.) Where two are jointly indicted, one is not admissible as a witness either for or against the other, until he has been first acquitted or convicted. And where one co-defendant in an indictment had been

and a separate trial of one of the defendants before the arraignment of the other, on the motion of the prosecutor, the defendant not arraigned is not a competent witness for the other, notwithstanding the statute securing in such cases a separate trial. (p)

An accomplice is a competent witness although his expectation of pardon depend upon the defendant's conviction. (2) (6) So, an accessary is a competent witness against his principal; and the principal against the accessary; as, for instance, upon an indictment for receiving stolen goods, the person who stole the goods is a competent witness. (r) The evidence of accomplices has at all times been admitted, either from a principle of public policy, or from judicial necessity, or from both. (s) The general rule is that a person who confesses himself guilty, is a competent witness against his partners in guilt; and on the trial of an accessary for a misdemeanor in receiving stolen goods, under the statute, the principal felon is a competent witness; the statute enacting that the accessary may be proceeded against, although the principal felon has not been convicted, and whether he be or be not amenable to justice. (t) It seems that what an accomplice states, under oath, would be inadmissible in evidence against himself, on account of the implied promise of the court to recommend him to mercy. (u) The fact of a witness's being an accessary, or principal, detracts very materially from his credit; (v) and it is always considered necessary, in order to

(p) 19 Wend., 377.

(g) Arch. Cr. Pl. and Ev., 147.

(r) 2 East, 782. 1 Leach, 467. 9 Cowen, 707. (s) People v. Whipple, 9 Cowen, 707.

(t) Ibid. 1 Leach, 467. 2 East's P. C., 782. (u) Ibid.

(v) Gilb. Ev., 136.

examined on the trial, without being previously discharged from the record, a new trial was ordered. (People v. Donnelly, 1 Ab. Pr., 459.)

On the trial of a criminal case, a defendant jointly indicted with another can not be examined as a witness in behalf of his co-defendant. (Patterson v. People, 46 Barb., 625.)

Now, however, it is provided by statute, in this state, that all persons jointly indicted, shall, upon the trial of either, be competent witnesses for each other, the same as if not included in the same indictment. (Laws of 1876, ch. 182, § 1; 3 R. S., 7th ed., 2571.)

(6) The acts and declarations of accomplices or confederates, though occurring in the absence of the principal, are admissible against him if there be sufficient evidence to establish, prima facie, a combination among them to commit the offense with which the principal is charged. (Farrell v. People, 21 Hun, 485.)

Evidence of acts and declarations by an accomplice, in the absence of the principal, is properly received if followed by evidence of complicity sufficient to be submitted to the jury. So held on the trial of a prisoner for rape, for which he had been indicted jointly with the accomplice. (People v. Mounais, 17 Ab. Pr., 345.) Testimony of accomplice.]—A conviction can not be had upon the testimony of an accomplice unless he be corroborated by such other evidence as tends to connect the defendant with the commission of the crime. (Code Cr. Pro., § 399.)

See People v. Davis, 21 Wend., 309; People v. Costello, 1 Denio, 83.

induce the jury to credit his testimony, to give other evidence confirmatory of at least some of the leading circumstances of his story. (w) (7) And if, upon an indictment against several, the

(w) Arch, 147.

(7) A prisoner may be convicted on the uncorroborated testimony of an accomplice; but it should be received with great caution. (People v. Costello, 1 Denio, 83.) This rule is well settled. (Royal Ins. Co. v. Noble, 5 Ab. Pr. [N. S.], 54, 57; Guguanzo v. Saloman, 3 Daly, 153; 1 Chit. Cr. L., 604; Dunn v. People, 29 N. Y., 523; People v. Dyle, 21 id., 578; Haskins v. People, 16 id., 344; Wixson v. People, 5 Park., 119; Maine v. People, 9 Hun, 113; 1 Greenl. Ev., § 360.) A conviction may be had on such testimony if the jury be fully persuaded of its truth. (Coats v. People, 4 Park., 662; People v. Haynes, 55 Barb., 450; S. C., 38 How., 369; People v. Lawton, 56 Barb., 126.) But the testimony of an admitted accomplice ought to be corroborated to some material point, in order to render it safe to convict. (Frazer v. People, 54 Barb., 306. See also, People v. Haynes, 56 Barb., 450; S. C., 38 How., 369; People v. Lawton, 56 Barb., 126.) The weight to be given to such evidence rests, exclusively, under proper instructions, with the jury, whose legitimate functions should not be usurped, directly or indirectly. (5 Ab. [Ñ. S. ], 57; Maine v. People, 9 Hun, 113.) The rule requiring evidence corroborative of that of an accomplice is one of practice, not of law. A jury may convict upon his uncorroborated testimony. (Id.) In order to corroborate the testimony of an accomplice, the prosecution may give evidence of the facts and circumstances attending the commission of the crime, and of such as relate to the person of the prisoner and connect him with the accomplice and the commission of the offense. (Id) Testimony offered in corroboration is not incompetent because it does not point directly to the prisoner. It is sufficient if it corroborate any part of the material statements in the evidence of the accomplice. (Id.)

Although the testimony of accomplices, uncorroborated, should be received with great caution, there can not be any question that if the jury find a verdict of guilty, upon such evidence, the court can not set it aside for that reason. (People v. Lawton, 56 Barb., 126.) When the evidence of an accomplice should be carefully scrutinized, it is for the jury to determine what weight should be given to it. (New York Guaranty, etc., Co. v. Gleason, 78 N. Y., 503.) Whether more weight should be given to the testimony of two accomplices, and whether, and to what extent, they corroborate each other, are matters for the jury. (Id.)

The guilt of a prisoner depending upon the credibility of evidence given by an accomplice, it is no error to charge the jury that they might take into consideration the omission of the prisoner to contradict the accomplice upon a statement in respect to which, if false, contradictory evidence was apparently within the prisoner's power. (People v. Dyle, 21 N. Y., 578.) There is no rule of law which prevents a conviction on the testimony of an accomplice, alone. The utmost caution should undoubtedly be exercised; but juries are nevertheless at liberty to convict on the unsupported testimony of a confederate in the crime. (Id.) The rule of law stated by Mr. Greenleaf (1 Greenl. Ev., § 380), is the correct one, and is expressed as follows: "The degree of credit which ought to be given to the testimony of an accomplice is a matter exclusively within the province of the jury. It has sometimes been said that they ought not to believe him unless his testimony is corroborated by other evidence, and without doubt great caution in weighing such testimony is dictated by prudence and good reason. But there is no such rule of law; it being expressly conceded that the jury may, if they please, act upon the evidence of the accomplice without any confirmation of his statement." (Id.)

An accomplice is admissible or not, in the discretion of the court, and when admitted, on his making a full disclosure, is entitled to a recommendation for pardon. (People v. Whipple, 9 Cowen, 707.) A motion should be made for an accomplice to testify, by the public prosecutor; and the court, under the circumstances of the case. will admit or disallow the evidence, as may most effectually answer the purposes of justice. (Id.) It seems that what an accomplice states, under oath, against his associate, would be inadmissible evidence against himself, on account of the implied promise of the court to recommend him to mercy. (Id.) Where one was convicted by verdict of murder, and was offered as a witness against an accessary before the fact, but appeared to have been the leader in perpetrating the crime, he was rejected.