If, therefore, there be sufficient evidence to convict without his testimony, the court will refuse to admit him as a witness.—Roscoe's Criminal Evidence, 127.
Neither do I believe that Mr. Rerdell had a right to go upon the stand until his case was finally disposed of. Precisely the same language is used by Wharton on Criminal Evidence, 439:
An accomplice is used by the Government because his evidence is necessary to a conviction.
That is the opinion of Mr. Justice MacLean, in 4 MacLean's Circuit Court Reports, 103.
Mr. Merrick. If not improper I may remark that all those cases refer to a condition of things prior to the trial in which the party appears as the witness.
Mr. Ingersoll. The usual question is—and the court determines that question—whether a man shall be a witness or not.
The Court. How can the court determine that without passing upon the evidence in the case? That is not the duty of the court; it belongs to the jury.
Mr. Ingersoll. The prosecuting attorney has to pass upon that himself when he makes up his mind to put him upon the stand; and he only has the right to do that when he believes that no conviction can be had without that testimony.
The Court. Then it belongs to the prosecuting attorney.
Mr. Ingersoll. I go further than that, and say that the prosecuting attorney cannot do that without consultation with the court, and without saying to the court that he believes no conviction can be had without that testimony.