*498Dissenting Opinion
REGARDING THE INTERRUPTION OF COUNSEL.
Breaux, J.The trial court certifies that it had decided that Act ISTo. 78 of 1890 applied if the defendant was guilty of having received a bribe.
The court’s statement in the bill of exceptions is sustained by the record.
An indictment against the defendant for the offence charged had been quashed on the ground that the act of 1890 applied. In the case at bar a demurrer on the ground that the defendant was not bound to answer had been filed and overruled.
The court had in these proceedings laid down its interpretation of the act in question.
The opinion of counsel regarding the law differed from the ruling of the court. One of the counsel, addressing the jury, read Art. 168 of the Constitution; and continuing his argument referred to the act of 1890, and stated to the jury that as to the receiver of a bribe, the statute is plain, that the only persons contemplated, were the officers and members of. the General Assembly, and counsel was interrupted at this point by the court, and was informed that, if he intended to question the applicability of the statute, he would not be permitted.
We have seen that the court had previously ruled.
If the trial court is subjected to a review of its ruling before the jury, and to an appeal to them for their reversal of the ruling by their verdict, it will be subversive of the respect due to that tribunal.
The jury should have confidence in the ability of the trial judge to properly interpret the law, and the judge should feel confident of the desire of the jury to discharge their duty. That confidence will be shaken if an appeal be allowed from the court to the jury. We have found no decision favorable to such an appeal (either English or American), to which attention has been called.
The case of the Dean of St. Asoph, made illustrious by the address of Erskine, the greatest advocate and forensic orator of his age, is cited by defendant’s counsel.
The position of the defence has no support in this case, as will appear by a brief review.
The dean, one of a great, many respectable gentlemen, im*499pressed by the danger to the public credit occasioned by long war, and, oppressed by grievous taxes, published a suggestive and guarded dialogue between a farmer and scholar, in which the scholar, meaning to illustrate the great principle of good government, asked the farmer a number of suggestive questions, which the public prosecutor charged were seditious and conceived to excite disloyalty and disaffection.
The dean was brought to trial as one of the principal offenders. In defending him, Erskine argued against the restraint placed on the jury by the court.
The juries, at the time, in all cases of alleged libel and treason, were confined to a finding of the fact of publication as charged.
They were not permitted to determine whether it was or not a libel or sedition.
Erskine contended that it was a question of libel or no libel, sedition or no sedition, and not a question exclusively of publication, and that the jury should exercise jurisdiction over the whole charge. His address paved the way for greater rights to juries in the administration of criminal justice.
He, with great clearness, admits that an accused can not claim before the jury the protection of a deficient indictment. But he claimed that the jury should exercise jurisdiction over the whole charge in finding a verdict.
The Constitution of 1879, of this State, has applied the principle for which he contended by ordaining that the jury shall be the judges of the law and the facts after the charge, and not of questions of law arising during the trial and necessarily decided before Che case goes to the jury.
A text writer, referred to by defendant’s counsel in this case, said that at the time of the foundation of the English colonies in this country there was a very strong feeling against arbitrary power, as the colonies had painful recollections of the abuse of judicial power in the mother country, and therefore it was natural that they should seek to enlarge the power of the jury and diminish that of the judge. Hence the doctrine that the jury could take away the law into their hands without regard to the judge’s charge, popular before and at the time of the revolution.
Even if the preponderance of judicial authority was not, in this country, as it is, in favor of the doctrine that the jury should take the law *500from the court and apply it to the evidence under its direction, under the doctrine popular before and at the time of the revolution, regarding the rights of juries, an appellate court will find no authority to grant a new trial and remand a case to enable the defence to argue a proposition not founded in law. The avowed purpose of the defendant was to argue a proposition that the trial court had decided illegal, and the ruling is affirmed by this court.
What useful purpose would be served in thus remanding the case as applied for? Sur.ely not to enable the jury to reach a different conclusion'in regard to the act of 1890 relative to bribes.
The facts which form the basis of the third and fourth bills of exceptions are:
That to the witness, Widney, the District Attorney propounded questions as to who furnished the amount of the alleged bribe.
The objection was that the evidence was not admissible for the reason that conversations between third persons tending to implicate the defendant, but nob had in his presence, is irrelevant.
There were three parties to the agreement regarding the alleged bribe — Widney, Wood and Callahan.
In compliance with the agreement entered into by these parties, in person, the witness testifies he paid the amount. Wood was not a third person to the agreement. He and Widney had interviews with the defendant, and acted concurrently in the matter of securing a privilege from the council through the defendant.
Moreover, the judge certifies that the fact sought to be elicited by the question objected to had gone to the jury when the objection was made in answer to questions previously propounded.
The admissibility of testimony can not be determined if the complaint is first made when the statement of a witness'is reiterated. State vs. Holmes, 40 An. 170: State vs. Donelon, 45 An. 755.
PART OP THE RES GESTiE.
Question also arose regarding the admissibility of the “ stub ” to identify the cheek, cash book and ledger.
With reference to the first, the trial judge certifies that over the objections of counsel for defendant he ruled that the stub of a check drawn to bearer for five hundred dollars, and dated November 7, 1898, with pencil mark “ ent. 15 ” written across, was admissible as part .of the res gestas; to the ruling, counsel for the defendant excepted.
*501It was a contemporaneous entry with the alleged bribe and part of the transaction. It was immediately incident to the principal act; part of the direct concomitant or conditions of the act. Wharton, Criminal Evidence (9th Ed.), par. 266.
The following is from Thompson on Trials, 466, and has some bearing: “And where an accomplice testifies that he had paid a bribe to the defendant (on trial for bribery) by giving to the defendant a cheek upon a certain bank, payable to cash or bearer, which had afterward been returned by said bank to the witness, it was competent for the Stats, in corroboration, to show by the books and business memoranda of the bank a credit to the defendant for a like amount; deposited by check two days after the alleged bribery.”
STUB AND ENTRY IN BOOK ARE CLOSELY RELATED.
This evidence being admissible, and the stub admitted being identified on its face with the entries in the books, to which the most serious objections are made, it does not seem that entries thus identified are inadmissible, as they are part of one act; that the law supporting the admissibility of the stub goes far toward justifying the admissibility of the entries in the cash book and ledger. They are intimately connected, and among business men the existence of cheek and stub suggest proper entry in cash book and ledger.
In the lower court a distinction was made between -the check and stub and the entries in the books. The latter, the entries, were finally admitted.
The prosecuting officers state that the entries in the 'books of the Pennsylvania Ooal Company were not offered for the purpose of corroborating the testimony of an accomplice as to those facts which fix the guilt of the accused, but for the purpose of sustaining his veracity.
On the part of the defence it is urged that the evidence was admitted to corroborate an accomplice. The court certifies that the evidence was not admitted for the purpose of corroborating the testimony of an accomplice, as contended by the defendant; that on the cross-examination of the witness, Widney, there was an attack made upon his veracity, and that the defendant had laid the foundation for impeaching his testimony, by propounding questions to that end; that without the testimony the State would have been left in a *502crippled condition without an opportunity of repairing the effect of the attack upon the veracity of the witness. That the avpwed purpose of the cross-examination of the witness had been to show that his statement, with reference to the alleged bribe, was a fabrication of recent date, and that witness’ statement subsequent to the 15th of November (the date of the entries in the books) would establish the fabrication. The principle is well settled that if evidence had been offered to show bias, improper motive or recent fabrication on the part of a witness, previous account given at a time unsuspicious, is admissible on a redirect examination. Best’s Principles of Evidence.
In People vs. Vane, 12 Wendell, 79, it was decided that the rule applies to an accomplice: “The witness shows on his direct examination that he was an accomplice; his testimony is therefore suspicious; it comes from a tainted source and may well be doubted. In such a case it seems to me the principle applies, that a witness who is impeached may be supported. * * * The rule is laid down by Macauley, that what a witness has been heard to say at another time may be given in evidence either to invalidate or confirm the testimony which he gives in court.”
In Commonwealth vs. Scott, 123 Mass. 222-238, referring to Commonwealth vs. Bosworth, 22 Pick. 397, it is said: “In that case (Bosworth), that the evidence in corroboration of the accomplice was admissible.” See also State of Kansas vs. Emma Hendricks, 32 Kansas, 559-563.
From Bishop C. P. 1170 we quote: “Not inconsistently with these views it is permissible also to submit to the consideration of the jury evidence tending to show the accomplice’s probable credibility, in his narrative, though coming short of the required confirmation.”
That rule is approvingly referred to in State vs. Banks et al., 40 An. 739, in deciding a point similar in some respects. The evidence was not admissibile for the purpose of corroborating the testimony of an accomplice.
It was admissible to prove the fact, the entry in the employer’s books, in regard to which he was impeached on cross-examination.
At the time the entries were made it was not self-serving, but it was the reverse, self-harming, evidence of an agreement reprobated and denounced by law. The State attempted to sustain his testimony, assailed, by offering book entries to establish that he had *503withdrawn the amount from the busine ss in his charge as agent. The fact had been previously proved by the “ stub book,” identified with the entries. The former, the “ stub book,” was legal evidence it is now decided.
Rapalje, in his treatise on the “Law of Witnesses,” p. 252, under the head, “Cross examination of Accomplices,” explains that the chapter regarding witnesses applies equally to accomplices, except “ that the latitude of cross-examination is especially extended where the witness is an accomplice, in allowing questions having a. tendency to shake his credit by injuring his character or to prove his accuracy or veracity; and in such matters much is left to the enlightened discretion of the court trying the cause, and its action will not be reversed; unless such discretion appear to have been abused;” and when this cross-examination “ tends to create a distrust of his integrity, fidelity or truth, it was held competent for the adverse party to ask the witness an explanation which might show the consistency of such facts with his integrity, fidelity and truth, although circumstances might thus be proved which were foreign to the principal issue, and which, but for such previous examination, would not have been permitted to be proved.”
No one denies that the object of the law of evidence is the discovery of truth under systematic methods.
It should also be conceded, for it is the law, that a witness may be sustained, whether impeached on cross-examination or by examining other witnesses in rebuttal.
This being the rule, let us assume, for illustration, that the amount was $10,000 instead of $500, and that the defence had produced evidence in rebuttal in proof of the utter impossibility of the witness having given that amount for reasons stated by the impeaching witnesses.
Evidence, under the circumstances, is admissible only to sustain the witness in the statement that the employer’s cash furnished the amount, as shown by stub, cash book and ledger, if there is not the least ground to suspect that the evidence is untrue; and admissible only to establish that the witness, did not state an untruth when he swore that he had the amount. As to whether he gave it or not as a bribe is another matter. It does seem that these instruments of evidence are admissible exclusively to prove that that sum was from the business of the employer, although charged as in this case. *504State of Kansas vs. Emma Hendricks, 32 Kansas, 559-563; State vs. Maury, 54 Conn., 178-191; State vs. Wolcott, 21 Conn. 272-281.
THE ALLEGED REFERENCE TO DEFENDANT.
It is error if the court permit counsel, against defendant’s objection, in addressing the jury, to comment on the omission of the defendant to testify as a fact for consideration in determining the ease.
The facts which form the basis of the bill of exceptions to the court’s ruling refusing to treat the whole case as a nullity, because of a remark of the Assistant District Attorney, are that, in addressing the jury, he said: “Who has denied that the defendant has received five hundred dollars? The accused has not denied it. I have not heard him deny it. ’ ’
To which counsel for the defendant called attention of the court, and instructed the jury that they must disregard the remarks of the Assistant District Attorney.
That prosecuting officer then continued his address to the jury, saying, in substance: “ I meant that there was no testimony in the case to prove that Callahan denied accepting or getting the money, and there has been no scintilla of evidence contradicting the statement of Wood and Widney, and that he meant no personal allusion to Callahan.”
The jury were also instructed in the general charge that they were not to construe anything unfavorable to the accused by reason of the fact that he had not testified.
If, despite the explanation and withdrawal of the remarks by the District Attorney, there lurked the least presumption in the minds of the jurors, it must have been removed by the instruction of the court.
The allusion and the correction brought out prominently that no inference was to be drawn against the accused from his omission to testify. It was, at most, a hasty utterance immediately corrected by cautioning the jury against giving it the least importance.
“The judge is not required to treat the whole case as a nullity because of such remarks.” Com. vs. Worcester, 144 Mass. 58, 57; Wharton, Criminal Ev. (9th Ed.) 435; Rapalje, Law of Witnesses, 252.
*505THE INSTRUCTION GIVEN TO THE JURY.
Lastly, the defendant requested the trial judge to instruct the jury that, if it was the duty of the accused to favor and vote for the ordinance of the council in question, and if he did favor and vote for it, without partiality and favor, as a matter of law the accused was not guilty. The court gave the charge requested, and added (to which addition the defendant objected) : “But I charge you further, that if he voted for it and favored it by reason of the fact that he was paid for it, he would have acted with partiality or favor, and if you should so find beyond a reasonable doubt, he would be guilty.”
The theory of the defence was, if the accused received the amount he was guilty of extortion in office, and not of receiving a bribe.
Requiring an amount for a vote is the crime denounced.
When the statute of 1890 was adopted there were statutes in the books denouncing extortion in office.
Nevertheless, the law-makers created a new offence and provided ■ more severe penalties. It is not within the authority of the courts to restrict or change the legislative intent as expressed in the text. The office is honorary, without emolument of any kind. If he accepted an amount which influenced him to vote with partiality or favor, the offence was within the meaning of the statute.
The Chief Justice concurs in this dissent.
Rehearing refused.