I cannot concur in the language used by Mr. Justice BROWN in his specially concurring opinion, as follows:
"I do not believe that any court should be a party to any such agreement, nor do I believe that the case of Ingraham *Page 563
v. Prescott,
It would be a dangerous precedent for this Court to adopt such a holding and would be contrary to the well established law.
To have the consent and approval of the trial court of the prosecuting attorney's contract with the accused for immunity is not only proper, but it is essential to have such consent and approval to give validity and binding force to the contract and to make it operate to protect the contracting accused. In Ingraham v. Prescott,
"Although it is universally conceded that the district attorney, or other public prosecutor may, with the consent of the court, enter into an agreement with an accomplice that if he will testify fully and fairly, in a prosecution against his accomplice in guilt, he shall not be prosecuted for the same offense, and that if the accomplice performs on his part, he is entitled to such protection as the law affords, yet the weight of authority upholds the proposition that if such an agreement is made with the prosecuting attorney alone, without the consent or advice of the court, it is of no effect as a protection to the accomplice, if he is afterwards placed on trial in violation of that agreement. State v. Graham,
"And the practice is for the court to nolle prosequi and dismiss the prosecution by incorporating in the record of its judgment the reasons therefor, which remain a perpetual record of the defendant's self-confessed guilt, although the *Page 564 punishment that might have been inflicted is withheld. See Camron v. State, 40 A.S.R. 763, supra."
See also Lowe v. State,
The legal principle is recognized in the old case of People v. Whipple, 9 Cowen 707, in which it is said:
`So long as, by the policy of the law, accomplices are deemed competent witnesses against their fellows, so long must a discretion in regard to admitting them be vested somewhere or other in the government. It could not consistently with the nature of the power, or the course and character of judicial proceedings be committed to the chief executive magistrate; nor could it with propriety be entrusted to the public prosecutor, or any other inferior ministerial officer of justice, because, strictly speaking, it is the exercise of a high judicial discretion, and the reasons for vesting it in the court, rather than in the committing magistrate or even the public prosecutor, is that the admission of the party as a witness amounts to a promise by the court of a recommendation to mercy, upon condition of his making a full and fair disclosure of all the circumstances of the crime."
See also Ray v. State, 1 Green 316, 48 Am. Dec. 379.
So it appears that for more than one hundred years in this country it has been held to be proper for the trial court to be advised of agreements between the prosecuting attorney and accomplice whereby the accomplice proposes to give full and complete testimony concerning the offense for which he and others stand charged, in consideration of which the State agrees that it will not prosecute such accomplice further on that charge, and being so advised either to approve or disapprove of such contract and agreement between the State and the defendant. *Page 565
The weight of authority appears to be that if the court approves the agreement, then upon the defendant carrying out his part of the agreement, it becomes the duty of the court to make an order on the record showing the conditions under which the accomplice testified and ordering his discharge from further prosecution.
