People v. M'Murray

1 Wheel. Cr. Cas. 62

• Court: New York Court of Common Pleas
• Decided: November 15, 1822
• Status: Published

Opinion

The Court told the jury “ that it was for them to decide “ upon the contradictory testimony of the prosecutor, and “ the witness for the prisoner; if they believed that each of “ them was entitled to the same degree of confidence, in “ point of veracity, yet the situation they stood in before “ the Court deserved their attention ; the law has allowed “ a prosecutor to be a witness, but it would be supposing an “impossibility, to suppose they did not view their case with “ partiality, and that less credit ought to be given to the “testimony of a prosecutor, than to a disinterested witness, “who comes before the Court not impassioned by previous “ circumstances, and nothing to hope or fear from the re- “ suit of the prosecution.” On some’ of the jury’s expressing a doubt whether the charge amounted to an assault' and battery or not, the Court said the offence, if proved, clearly amounted to an assault " and battery. The jury found the defendent not guilty.

Note.—There can be no doubt of the legality of this decision. When the true situation of the prosecutor and the culprit are considered, we would find it impossible to bring ourjnind to believe that he can be altogether indifferent to the issue of the case he prosecutes. There arre a thousand little circumstances that are calculated to raise his passion above the level of an honest indifference for the termination of a trial to which he himself has, in feeling become a party. Hence the bias he must almost infallibly receive.

A great lawyer, speaking of prosecutors, has said, " 1 have found then^ “in the course of my experience, generally very anxious to obtain a “ conviction of the unfortunate wretch upon his trial; andl may .with “equal safety, say .that I have seldom found any unwillingness on the “ part of witnesses to give evidence. Indeed, I have had occasion “ much oftener to rebuke them for their over zeal in the cause of jus- “ tice, than to admonish them to give their testimony.” Lord Ellen-borough’s speech in the House of Lords, on the Bill relative to Stealing in Shops, &c. 30th May, 1810.