Page:American Journal of Sociology Volume 4.djvu/654

 634 THE AMERICAN JOURNAL OF SOCIOLOGY

the accuser ; but if the accused were not convicted, the accuser was executed. The practice in the United States is that the testimony shall not be used to convict the accomplice, even if the accused is not con- victed.

If the object of punishment is protection to the state, it is not quite clear what the gain is when one avowed criminal is turned loose in order that another may be convicted. Not infrequently the greater criminal is released (Lindsey vs. People, 63 N. Y., 143), although some of the states have sought to avoid this result (State vs. Ray, I Gr. la., 319). It seems anomalous that to procure the chance for the conviction of one whom the law assumes innocent another whose guilt is unquestioned is pardoned, and this lest the tender sensi- bilities of the criminal be wounded by a personal examination, as is permitted in France. A conviction may be had on the uncorroborated testimony of an accomplice, but this is not the general rule in the United States (1 Gr., 316). It exists in the United States as a rule of practice, rather than as a law. In 9 Cowen, 707, the rule is stated that the least guilty morally and lekst hardened is selected for state's evi- dence, and it should appear probable that his testimony will secure a conviction, without which it would have been impossible. This is, however, more theoretical than practical. In nearly all states this method is permissible, and its faults are obvious. It is inevitable that one criminal must escape, and it is a reflection upon the ability of the law that it must secure punishment with the aid of the accomplice.

Closely related with this rule is that which provides that a witness is not compelled to incriminate himself, and need not give evidence if he is a party defendant. This is also a modified survival of the earlier English common law. One advance may be said to have been made, in that, if a criminal elects to give evidence, he subjects himself to all the hardships as well as to all the privileges granted to other witnesses, although he cannot be examined as to matters in regard to which he has not testified (People vs. O'Brien, 66 Cal., 602 ; State vs. Chamberlain, 89 Mo., i 29). With one exception (Com. vs. Cleaves, 59 Me., 298), no inference can be drawn from the silence of the accused (People vs. Tyler, 36 Cal., 522; Price vs. Com., 77 Va., 593). The rule in some jurisdictions has been so extended that the prisoner need not give evidence which tends merely to disgrace him, and is himself the judge as to whether the testimony will incriminate him. In .\ustria and France prisoners are interrogated with good success, on the theory that no criminal should be allowed to menace