
    Gilliam v. The Commonwealth.
    July, 1834.
    Criminal Law — Assault and Battery — Witness—Prosecutor. — On an Indictment for an assault and battery on the voluntary information of the person assaulted, the informer and prosecutor, being; the only witness for the prosecution, is a competent witness, thougrh liable for costs In case defendant is acquitted.
    
      Petition fora writ of error toa judgment of the circuit superiour court of Prince George. The grand jury made a presentment against Gilliam, for an assault on a deputy sheriff, and resisting him by force in the lawful discharge of his official duty, upon the information of the deputy sheriff, who was a voluntary informer; upon which an information was filed against Gilliam for the offence. At the trial, the deputy sheriff was the only witness for the prosecution; and the defendant objected to his competency, because, as he was the informer and prosecutor, and so stated to be in the presentment of the grand jury, he was liable for costs in case the defendant was acquitted, by the provision of the statute, 1 Rev. Code, ch. 169, 46, p. 611. But the court overruled the objection, and admitted the testimony of the witness; to which the defendant filed exceptions. The jury found him guilty, and assessed a fine of fifty dollars upon him. The court gave judgment for the fine. And now he presented a petition .to this court for a writ of error, ^'assigning for error, the admission of the testimony of the informer and prosecutor to sustain the prosecution.
    Allison, for the petitioner.
    
      
      Criminal Law — Assault and Battery — Witness—Prosecutor. — The principal case was cited in Com. v. Hart, 2 Rob. 822; foot-note to Baker v. Com., 2 Va. Cas. 353. See also, monogrraphiciiote on "witnesses” appended to Claiborne v. Parrish, 2 Wash. 146.
    
   MAY, J.

The question presented in this case, was decided by this court in Baker’s case, 2 Virg. Ca. 353, and it is believed, that the practice of all the courts of criminal jurisdiction in the state, has been, from the earliest times, in conformity with that decision. From necessity, or on a principle of public policy, evidence is received from persons who are entitled to rewards on conviction; 1 Phil. Law Ev. 91, [96.] The reason here is of the same character. The prosecutor was, in this particular case, and in many others, he probably will be, the only witness, by whose testimony the indictment could be sustained. The statute has made him liable for costs, in case the prosecution fails; but it could not have been intended, in such cases, to make the •failure of the prosecutions inevitable.

Writ of error denied. 
      
      New York edition of 1830.
     