Page images


question was doubtless passed for the purpose of also to his right of custody and control, and to the protecting the public from imposition in the pur services of the children. In this case, as in Gruy chase of a class of goods, the quality of which can v. Durland, there was strong dissent, so that it is not well be determined by artificial light, and for clear that the decision was made upon full considthat reason every intendment should be indulged eration of both sides of the question, not only at in support of its validity, but the statute, which it the argument, but in consultation. These cases are is claimed confers the only authority upon the coun cited by Gilbert, J., in Certwell v. Hoyt, 6 Ilun, cil for its passage, is in derogation of the common 575, 577, as deciding that the widowed mother is law, and must be strictly construcd.”

entitled to the services of the minor child. We regard the rule as now firmly settled in this State

upon the authority of the cases above cited.” In Kennedy v. Nero York Cent., etc., R. Co., 3.5

the same effect, Hammond v. Corbett, 50 N. II. 501; Hun, 187, it was held that a widow is entitled to

S. C., I Am. Rep. 288; Mattheroson v. Perry, 37 the services of her minor child. The court said:

Conn. 435; S. C., 9 Am. Rep. 339. “Whatever notion may have previously been entertained upon this subject, that question has lately been answered in the affirmative by a series of cases

RULES AS TO TIE PRIVILEGES OF WITwhich must be deemed to settle it in this State.

NESSES. In Gray v. Durlund, 50 Barb). 100, 211, the plaint

V. iff, a widow, sued for the seduction of her minor child. It appeared that the daughter was of the

RULE. Where at uitness refuses to ansdor" (1 question age of sixteen years; that at the time of the seduc

on any of the grounds mentioned in the prereiling rules, tion she lived at the defendant's house as a domes

the court is bound by his refusal, (at) unless the gromax tic and scrvant, receiving her wages and using

of his privilege being before him, the judge erin sec that them for her own support. The sole question pre

the witness is mistaken conuerning his liability its (1 sented in the case was whether the mother of the

matter of law (1) (b). minor was entitled to her services. This appears from the opinion of Miller, J., delivering the opin

ILLUSTRATIONS. ion of the court, and by the opinion of Ilogeboom,

(A.) J., dissenting. The decision was that the mother,

1. A party is asked whether he has in his possesas such, had the right to maintain the action as the

sion any deeds or writings relating to the lands in natural guardian of the minor, is the person

dispute. He replies that he has, but that they rebound to maintain and support her, and as the par

late exclusively to his own title to the lands, and ent who is entitled to her services upon the death

do not show any title in the opposite party. Ile of ber father. The case of Gray v. Durland was

cannot be compelled to disclose their contents or followed in Simpson V. Buck, 5 Lans. 337, which

to describe them (2). was an action by the mother to recover for the

In case 1 it was said: "The course of adminisservices of her minor son while in the employ of

tration of the law in this country has always been defendant. The only question presented was

never to compel i witness to answer il question whether the mother was entitled to the services. The court below held that she was not, imnd judg

which bus atendency to criminate himself. This is ment went against her. l'pon appeal the General (1) Iu R. 1. (iarbett, 30. SK. 171; 1 Den. C.C.230 (1817), Term reversed the julgment, saying that Gry v.

which was considered by all the judges, it was laid down that

Il a witness claims the protection of the court on the ground Durlund. was put upon the ground stated above, that his answer would tend to criminate him, and there apand was decisive of the question. The same point pears reasonable ground to believe that it would do so, he is was again presented in Furman v. Van Sixe, 56 N. not compellable to answer In New York it has been held Y. 435; S. C., 15 Am. Rep. 141. In that, as in the

that the judge should explain to the witness whit acts

amount to a crime or subject him to a penalty, and what not. former case, the daughter at the time of the sedue

('lose v. Olney, 1 Denio, 3:20 (1815). The question of privilege tion was not in the actual service of the mother,

is for the court, not the jury. Phelin r kenderiline, 20 l’em. and the case turned upon the same question pre St. 363 (1953); Floyil v. Statı, 7 Tex.:215 (1851). In some of the sented here, whether the mother being a widow

English cases it seems to be laid down that the witness must was entitled to the service of her minor child.

satisfy the court that the etrert of his answer will be to crim

inate himself, before he will be excused from auswering. Judge Grorer, delivering the opinion of the court,

Short v. Jercer, 3 Mac. & G.212 (1951); Parkhurst v. Lowten, says that the law imposes upon the father the cluty 2 Swanst. 203; Chambers v. Thompson, 4 Brown Ch. 433. of providing for and maintaining the infant off When he places himsell upon his privilege he will be prospring; but after the death of the father the same

tected, unless the court ciin see from the circumstances of law casts this duty solely upon the mother who

the case that he is in error ; that it is a mere pretext ou the

part of the witness to avoid answering, and that his answer must, if of sufficient ability, maintain, educate and take care of her infant children. As the result of

cannot, froin the nature of thin; s, criminate hiin.

be manifest however that in many cases it will be in possible this obligation, he says she is entitled to the cus for the court to anticipate what effect the answer may have, tody and control of such children; succeeding in

and whenever they cannot sep that he will not be criminated. this respect not only to the obligations and duties Seammon, 29 N. 11. 2011 (1851


the privilege will be recognized and protected." Janvrin v. primarily resting upon the father during life, but (3) Adams v. Lloyd, 3 II & V.351 (1838),

It must

considered so sound a principle that the right of a every man's house his castle, and attaches such implaintiff or defendlant in a civil suit is taken away | portance to the protection of property in land. by it, however important the testimony may be, The distinction which the law has at all times even though it might establish his title to an estate made between real property and personal property or interest ever so large. Doubts have arisen as to may in part have arisen from this: that if a man the extent to which the privilege may be carried, has land he is considered as holding it under a and whether there are any limits to the protection grant from the crown; if he has some personal of a witness. The only exception I know of is property he holds it directly or indirectly, by reathis: where the judge is perfectly certain that the son of some contract. The rule that a man shall witness is trifling with the authority of the court, not refuse to answer, because the answer would and availing himself of the rule of law to keep subject him to a civil suit, has long prevailed; for back the truth, having in reality no ground what-though at one time there was considerable differever for claiming the privilege, then the judge is ence of opinion on that point, the matter was firight in insisting on his answering the question. nally settled by 46 Geo. 3, chap. 37, which makes the But it would be very inconvenient to lay down is a broad (listinction in this respect between civil suits rule, that the party questioned is bound to go so and criminal proceedings. To apply these remarks far ils to satisfy the judge that the answer to the to the case now before us: The question is, whether question might criminate him. In disclosing the the plaintiff is bound to produce his title deeds. source of danger he might place himself in peril, To compel him to do so would introduce a new and cause the very mischief which the law meant rule, which certainly was never intended by this to prevent. It appears to me therefore that the act of Parliament, and would render a title deed law is as pronounced by Maule, J., in Fisher v. of no more importance than a bill of exchange or Ronalıls, and although some doubts may have been any other written document. I think that a man's expressed as to the correctness of his view, I do title deed is still protected, unless it tends to prove not find any conflict, of decision on the subject. In the case of the opposite party; if it does not, it is the case of Fisher v. Ronulis the other judges did irrelevant. The recent changes in the law have not state the rule so broadly; none of them how- made no alteration in that respect. There is a ever dissented from it. Williams, J., gave a judg- power to call for documents; first, one party may inent quite sufficient for the purposes of the case inquire whether the other has in his possession or before him, saying that he thought, it, abundantly power any documents relating to the matter in disclear that the answer of the witness must have a pute; that means, have you any documents which direct tendency to place him in danger, but he de- I am entitled to see? If so, state them, and then I clined saying: Who is to judge whether that is so? will call for them.' If the party interrogated says It is impossible to satisfy the judge without expos on oathi, “I have no such documents; you have no ing the whole matter; and a man may be placed right to know how many deeds I have in my chest, under such circumstances with respect to the com but I swear that I have no documents which relate mission of a crime, that if he discloses them he directly or indirectly to the matter in dispute,' might be fixed upon by his hearers as a guilty per- then the other party has no right to inquire any son; so that the rule is not always the shield of the further. That is in accordance with the right of guilty, it is sometimes the protection of the immo- search in other cases. After a dissolution of partcent, although very likely it was originally intro-nership one of the partners may have in his possesduced from humano motives, being probably dle-sion a book which the other wishes to inspect. The rived from the maxim 'nomo tenetur se ipsumn (con latter has it right to see such portions of the book sure.' Such being the rule, we are enabled to as relate to matters in which he is concerned, but come to a just conclusion with respect to the propo- he has no right to see the rest. Then the book is sition which the plaintill's counsel so ably alvo- produced with those parts sealed up. But how is cated. That proposition is, that is a plaintifs or that determined? By the oath of the party. Such defendant has deeds in his possession, and says has always appeared to me to be the law, and I that they do not relate to the title of the opposite think that after this discussion it will no longer be party but solely to his own, then the opposite party looked upon as uncertain.” has no right to say, “I should like to be satistics of In kisher v. Romulis (3), Maule, J., said: “The the fact myself; I doubt whether you entertain a witness might be conscious that there was evidence correct view of the ineaning of the documents, or against him which his answer might render comare quite honest in your representation of their plete.

It is the witness who is to exnature.' If the information respecting them can be ercise his discretion, not the judge. The witness obtained, the mischief is done the opposite party might be asked, were you in London on such a would acquire some knowledge which he is not en- day? and though apparently a very simple questitled to. Voreover, the answer might enable tion, he might have good reason to object to ansome one else take proceedings, and thus a per: swer it, knowing that if he admitted that he was in son might lose his estate. The distinction be- London on that day his admission might complete tween title deecis and other things is in a great | a chain of evidence against him which would lead measure dependent on the dogma which makes

(3) 12 C. B. 1763 (1852).



to his conviction. It is impossible that the judge tificate is a full protection to him, the witness will can know any thing about that. The privilege be compelled to answer (7). would be worthless if the witness were required to 3. A witness is asked whether he knew of any point out how his answer would tend to criminate one, other than himself, being engaged in gambling him.

The rule is of considerable an at a certain place at a certain time. The witness tiquity, and I am not aware that any great practi- refuses to answer because it will criminate him. cal inconvenience has been found to result from it. The judge may compel an answer (8). I think you must contend here that the witness' an 4. A witness says: “I decline to answer that swer could not possibly place him in jeopardy, be- question, because it may show that five years ago I fore you can say that the judge was wrong in exercised an oflice without first taking the oaths." refusing to compel him to give it. * I The judge decides, as a matter of law, that a subthink the judge is bound by the witness' oath, sequent act has repealed penalties of this kind. otherwise you might exhaust all possibilities con IIe will therefore compel an answer (9). sistent with a man's innocence, and so convict him In case 1 it was said: “The first point raises the of murder.” And Jervis, C. J., added: “We question whether the witness is to determine the must allow the witness to judge for himself, or he law as to his liability to any penalty. I do not would be made to criminate himself entirely. There doubt the accuracy of the observation in the case is no doubt at times great clifficulty in applying cited, that in a great number of instances the witthe rule, but it is impossible to help that.” In Os mess himself must be the only person to determine born v. London Dock ('0. (4), where it was argued that point, but certainly where all the facts relatthat the judge ought to decide whether the wit- ing to it are brought before the attention of the ness' reasons were suflicient for refusing to answer, court, then I am of opinion that it is for the court Alderson, B., answered: “On the other hand there to determine it, because it is a mere question of is great difliculty in saying where the limit is to be law, and such is the case upon the present occasion. drawn; for is the court were to decide improperly I therefore proceed to eximine the law of the case, that a question may be put, irreparable injustice and toinquire whether the witness incurs any liability might be done to the witness. Suppose, for in- sufficient to justily him in his refusil to answer the stance, a witness were asked whether he was in the question." And after exiumining the law the court company of two other persons at a particular place held that there was no illegality about the transacat a certain hour. That seems a very innocent tion. The witness therefore was required to anquestion, and yet the answer might leacl to the con swer, and the ruling was atlirmeil on appeal. viction of the witness for some very serious crime. In case 3 it was said: “In relation to the priviThe witness may know the effect of the question, lege of witnesses, it is necessary to avoid these two and upon that ground he may refuse to answer it, extremes: 1. That of permitting the witness to although the court may be totally ignorant of its protect himself by his privilege by refusing to aneffect."

swer questions which cannot, from the nature of (B.)

the answers sought, criminate him. 2. That of 1. In a proceeiling to wind up a company a wito compelling him to answer, when from the nature of ness is asked whether he has bought or soll, or had the question, the answer would inevitably crimiin his possession, any of the shares of the company. nate him. In the first the court must be judge, and Ile declines to answer on the ground that the com- | compel the answer. In the second the witness is pany is illegal, and the issue of the scrip illegal, sole judge, and may answer or refuse, as he sees thereby subjecting him to a penalty. It is for the proper. When it is evident to the mind of the julge to decide this, and if he decides that such court that the answer cannot accuse the witness, transactions are not illegal, the witness must an the court should require him to respond to the inswer (5)


In this case it was (viilent 2. In England it is provided by the Corrupt rom the scope of the question that an answer could Practices Prevention Act (elections), that a person not possibly infringe upon this right, and yet the giving full answers to all questions is to corrupt witness makes himself the juilge, and refuses to practices committed by him shall be freed from answer." subsequent punishment or penalty (6). A witness

Joey D. LAWSON. who has been examined in such an inquiry, and has obtained from the tribunal a certificate of indemnity under the statute, is examined in a prosecu

1'011) GRLITS OF LLIT HELD IDTERSELY. tion for bribery growing out of the same election. IIe is asked, "did you at such a time receive a sum

II E system of practice inaugurated by the Code is,

in of money from the responclent?" He declines to

of legal fiction. ('ommon sense and ordinary lananswer on the ground that his answer would crim

guage, as opposed to technicality and circumlocution, inate him. If in the opinion of the judge the cor lie at the basis of the system and give it vitality and (4) 10 Ex. 700) (18.55).

(7) Ex parte Fernandez, 10 C. B. (X. S.) 4 (1961), (5) Ro Mexican & South American (0,27 Reav, 174; 1 Deli (8) Richman v. Statı, 2 G. Greene, 53:3 (1930,. & J. 330 (1859); Sidebottom r. Adkins, 3 Jur. (N. S ) 6:30 (1857). (9) King of the Two Sicilies ✓ Willeox, 1 Sim (W. S.) 3:30 (0) R. v. Ilulme, L. R., 5 Q. B.: 370 (1970).


[ocr errors]

consistency. The administration of justice is no longer sented to him, would content himself with ascertainto be hedged about with mysterious and vapory ing as a fact whether at the time of the grant to his legal terms. It is to find the fulfillment of its mission client, the property sought to be recovered was held less in the theoretical than in the real status of the adversely. He would thereupon institute proceedings parties. The veil of the temple of justice has been in the name of the grantor of his client, and not until rent in twain, and the language of the layman instead he was met at the trial by a more learned and philoof the mysterious circumlocution of the priest is to be sophic opponent, would he discover that in addition to heard at the altar. The practice of law, as respects the the single preliminary query which he propounded at litigation of cases in our courts, has been made a prac the outset, there were two other elements in the case tical matter. It is not so much a problem in algebra, which he had quite overlooked. They may be started with many and complex signs and symbols, which con as queries, thus: First. Did the grantee derive title fuse the uninitiated, as an example in simple arithme direct from the grantor, or indirectly through judicial tic, the statement of which the merest tyro may proceedings? Second. Was the adverse holding under comprehend.

a claim of title, or was it a mere adverse possession ? In Among other provisions of the Code, framed in this short, if either of these elements were involved in the spirit, is that contained in section 449, which provides case, then the grantee, and not the grantor, would be that every action must be prosecuted in the name of the proper party plaintiff, since the courts have beld the real party in interest. Speaking generally, thero that the statute which declares void all grants of land would seem to be but little occasion for any judicial held adversely does not contemplate cases where the interpretation or construction of this provision, and transfer is made by operation of law, and not by the whatever questions respecting its scope and meaning direct act of the grantor, nor cases where the dispute may have been raised, have long since been placed at is not concerning the title, but the right of possession rest. But connected with this provision and section growing out of disputed boundaries. 1501 we find a clause which has more than once in In the first class of cases the statute originated in volved courts and litigants in doubt and obscurity. By the ancient doctrine of champerty. Its purpose was this clause it is provided that an action may be main to prevent a sale of disputed rights, which was contained by a grantee of land in the name of the grantor trary to public policy. Says Hawkins: “It seemeth to

when the conveyance under which he holds bo a high offense at common law to buy or sell a doubtis void because the property conveyed was held ad ful title to lands known to be disputed, to the intent versely to the grantor.

that the buyer may carry on the suit which the seller By the provisions of the Revised Statutes (2 Rev. doth not think it worth his while to do. And it seemStat. 1120) “every grant of land shall be absolutely eth not to be material whether the title so sold be a void if at the time of the delivery thereof such lands good or bad one, or whether the seller were in possesshall be in the actual possession of a person claiming sion or not, unless his possession were uncontested." under a title adverse to that of the grantor."

1 Hawk. P. C. (('urw. ed.) 470. And Bishop, under Here then is discovered a class of cases wherein the the head of “ Champerty” (2 Cr. Law, § 137), says: real party in interest, namely, the grantee of such “This is one of the sources of the rule that a convey"void” grant may not sue in his own name. That ho ance of land held by another adversely to the grantor is the real party in interest is unquestioned, for al is void." though the grant is declared to be void, it is The foundation of the rule and of the statute having only sub modo and between the

gran thus been made clear, it did not take the courts a great tee and third parties. As between him and the whilo to see that when a man's property was taken grantor the transfer is perfectly legitimate. So that from him by judicial decree or by operation of law, the sense of the Code provision to which I have re and transferred to another-even though at the time ferred would be something like this: A. has executed held adversely-the transfer did not come within the and delivered to I), a conveyance of certain real prop mischief contemplated by the enactment, and in acerty. But at the time of the conveyance this property cordance with a familiar legal maxim, the reason of was in the actual possession of (., who claimed to hold the rule having ceased, the rule no longer applied. it adversely. B. is the real party in interest in any The first case in which this doctrine was clearly stated litigation to recorer the possession from C. But as the was Tullle v. Jackson, 6 Wend. 224, in which Chancelstatuto makes the grant void as respects C., the only lor Walworth uses this language: party who can prosecute the action is A. But as be “I am satisfied that the statute against buying and tween A. and B. the latter has a valid conveyance, the selling pretended titles cannot apply to judicial sales. Code permits him to uso A.'s name in the action It is merely an affirmance of the common law, and brought to recover possession. This looks a little like that has never contemplated preventing change of title circumlocution to the lay understanding. But is is clear by operation of law or by sale by a proper officer ouder that if B. were to be permitted to sue in his own name, a bona fide decree. It does not como within the misthe statuto making void such'grants would be rendered chiefs intended to be guarded against by the statute." ineffective.

In lloyt v. Thompson, 1 Seld. 345, Ruggles, C. J., The question which I wish to present at this junc said: “A change of property by operation of law or ture is this: Must the grantee of real property in all sale by a proper officer under a bona fide judgment cases use the name of his grantor in actions to recover does not come within the mischief of the statute." the same as against one holding adversely at the time And in the same case Paige, J., added: “The princiof the grant? Having in view the phraseology of the ples of the common law and statutes do not apply to Code, and giving it a literal construction, the answer judicial sales or sales made under a decree, etc." would appear to be in the affirmative. But the courts, The same principle was enunciated jn 14 N. Y. 289; drawing inspiration from the spirit which animates and Stevens v. Ilamuser, 39 id. 302. our modern system, and at the same time bearing in In the second class of cases the authorities simply mind the reason of the rule which avoids such grants, adopt a sensible construction of the literal words of have held that these statutes, clear and wambiguous, the statute. It is not every grant of land held adas they appear to be, are nevertheless subject to cer versely which is void, but only such grants as are held tain exceptions.

by adverse tille. There must be not only a claim of Naturally enough, the pleader, not having these ex possession, but it must be founded on a title adverse. ceptions before him, would be governed by the plain (Consequently when two parties claim under the same terms of the Code provision, and when a caso was pre description or under the same grant, but there is a

[ocr errors]



ON exceptions.

question of boundary, the case is not within the Most of the authors on evidence evidently adopt the statute. A fortiori, must this be so where the claim view that the testimony is admissible when offered by ant has mere naked possession without any title what the State. Although but little authority is ad

duced to support their statements, and the doctrine is As was said by the court in Allen v. IVelch, 18 Hun, not very clearly or positively stated in some instances, 226: “It would be unreasonable to say that if one of still such a general concurrence of favorable exprestwo adjoining neighbors entered on and took posses sion has much weight upon the question. It goes far sion of a strip between two disputed boundaries, the to show the common opinion and practice. Hawkins other could not make a valid sale of his land until the P. C., book 2, ch. 46, § 90; 1 Halo P. (. 305; 2 Starkie end of a litigation and the removal of the intruder.” Ev. 11; Roscoe Crim. Ev. (9th ed.) 130, 1:10; 2 Russell

In that case each party admitted that the other was Crimes, 957. Mr. Wbarton says: “An accomplice is owner up to the line, wherever the line might be, and a competent witness for the prosecution, although his the judgment of the court was that for this reason the expectation of pardon depends upon the defendant's doctrine and statute of champerty did not apply. conviction, and although he is a co-defendant, pro


vided in the latter case his trial is served from that of YONKERS, N. Y.

the defendant against whom he is offered.” Whart. ('r. Ev. (8th ed.), $ 439. Mr. Greenleaf states the same

rule. Ilo says: “The usual course is, to leave out of ÜRIJINAL LA W— JUURDER--C'()-DEFENDANT JIA Y the indictment those who are to be called as witnesses; TESTIFY.

but it makes no difference as to the admissibility of

an accomplice, whether he is indicted or not, if he has MAINE SUPREME JUDICIAL COURT.

not been put on his trial at the same time with his

companions in guilt.” 1 Green). Ev., S 379. STATE V. BARROWS.*

The counsel for the defendant places especial reli

ance on Mr. Bishop as an opposing authority. That On the separate trial of one of two persons jointly indicted for

learned commentator evidently attaches more weight murder, the other defendant, even while the indictment

to that side of the question than other writers do. 1 is still pending against himself on a plea of not guilty, Bish. ('r. Proc. (3d ed.), $& 10:20, 1166. But Mr. Bishop may with his own consent be called as a witness and al

states that all the cases are not in accord with his text, lowed to testify against his co-defendant.

and also says, in a note to the section cited supra, that N

the late English doctrine seems to differ from the rule

recognized by him. We fiud it to be so. Late English Indictment against Oscar E. Blaney and Mary E.

casos are quite emphatic to that effect. Queen v. Barrows for the murder of Thomas Barrows at Kit Thompson, L. R., 1 ('. ('. 378; Qucen v. I'insor, L. R., tery, on the 11th of November, 1883. The respondents

1 Q. B. 390; Quern v. Payme, L. R., 1 ('. ('. 319; Queen sererally pleaded not guilty. On motion of Mary E.

v. Deeley, 11 ('ox. ('. ('. 607. The defendant's counsel Barrows a separate trial was granted her and she was

however in their able and exhaustive brief contend first put on trial.

that the late English cases are based upon acts of ParThe opinion states the question presented by the ex

liament in amendment of the common law. It cannot ceptions.

be so, for ('hief Justice ('ockburn in Queen v. Payne,

supra, declares the rule to be according to the law “ Ilenry B. Cleaves, attorney general, and Frank Ml.

it has existed from the earliest times," and other Iliggins, for State.

judges gave their opinion that the new enactments Tru T. Drew, William Emery, and John B. Donorun, were not intended to apply to criminal cases. Seo for chefendant.

cases, supra. PETERS, ('. J. Mary E. Barrows and Oscar E.

The question before us does not appear in any reBlanes were jointly indicted for murder. She was

ported case in this State. State v. Jones, 51 Me. 125, soparately tried. Blaney, without any further dispo- approaching the question nearer than any other case, sition of the indictment as to him than his plea of not

merely decides that when two are indicted, and one guilty, was called as a witness against her. The bill of

pleads guilty, his testimony is admissible for the other exceptions presents the question, whether if two are

defendant. Kent, J., says in the opinion: “It seems indicted jointly, and one pleads not guilty, his tes

to bo settled that he cannot be thus called whilst the timony, if he consents to be a witness, is admissible

charge in the indictment is pending and undisposed of for the Stato on the separato trial of the other defend

against him. And this whether he is to be tried sepant.

arately or jointly.” That is, the defendant cannot be In this Stato it is a question to be decided upon the

called by tho co-defendant. The latter remarks are a principles of the common law as amended for modified

correct statement of the law of New York, and New by statutory provisions.

York cases are cited in support of it. See 17 Alb. L. As a question simply at common-law, although there

J. 421. In 1876 however the privilege of calling a cois a contradiction in the cases, the preponderance of

defendant to testify, before that time possessed by the authority seems to favor the admission of a co-defend

prosecution only, was extended by a legislative enactant, not on trial as a witness, if called by the prosecu

nient to all parties. 18 Alb. L. J. 160. The case of tion. There is very much less authority allowing him

Lindsay v. Prople, 63 N. Y. 14:3, relied upon by the to be sworn as a witness for the defense. Whether the

defendant's counsel, upon a correct understanding distinction be a sensible one or not, it has prevailed

of it, does not contradict previous decisions in that extensively. There are really but a few adjudged

State. cases upon the point whether such testimony is admis

The argument against the admission of such evisible for the State, for the reason, probably, that a

dence does not strike us with much force. It is almost prosecuting attorney can avoid the question by omit

universally admitted that an accomplice separately inting to indici one part.y, or by obtaining separate in

dicted may be a witness for the State, and any distincdictments. The defendant having no such election,

tion arising between trials on a joint indictment and the cases affecting the testimony in his behalf are more

trials on separate indictments is not readily apprecianumerous.

ted. The crime is supposed to be jointly committed

in either case. If there are separate indictments, the *S. C., 10 Me. 401.

fact of joint criminality is not withheld from the


« PreviousContinue »