Opinion of the court delivered by
Tompkins Judge
Tpis was a joint indictment against said Garret, Ellison-. Wll Earns, Youüg E, Miller, James Williams, and Presly Bryant, for a felonious assault Committed on Richard Johnson and Polly Johnson h&wifa. Garrett was found guilty in the circuit court, and tóreverse the judgment of that court be appeals to this court. On the trial of the cause the State: *2introduced as a witness Polly Johnson one of the person» in the indictment. She testified that on the night of 28th, January 1838, in the county of-Morgan after she an^ her husband had gone to bed, and he .was asleep, two men came to their house and went to the fire, and stirred it up so as to make a light; they then came to the bed, Garrett, the défendant and appellant, to the foot, and Ellison Williams to the side near the head; that'Garrett had a club; she waked her husband, he rose in the bed, and as he rose Garrett beat-him down with the club, and then he and Williams dragged him out of the house some distance,-and together with Young E. Miller and" the other defendants in the indictment, beat, bruised, wounded; and very much abused the said Richard Johnson, Upon the cross examination of the witness, the defendants counsel asked her whether she recognized Garrett, before he came from the fire tó the foot of the bedi She answered that she did not, but-that when he got to the foot of the bed she discovered that h-is face was blacked: that she did not on that night observe gither the color of his eyes or hair, but that she recognized him from the features of his face and general appearance; -that she had never seen him but on three different .occasions before that -night, and that he was riding or walking by the place where was standing, that she had.never any conversation with him, nor been immediately in his company. -The defend-' ants counsel then asked her whether, she had not- on oath stated, before the committing magistrate before whom the defendant had been’brought on the said charge, that she recognized and knew Garrett before he came to the bed, and while he stood on' the hearth near the fire, and that his eyes and hair were black: she answered th.al she did'not recollect whether she testified before-the justice or npt. 'Garrett then asked her, whether she had not on a former-occasion, to wit: the trial of Young É. Miller, testified that the-eyes and hair of the defendant were black, and that she knew him by the color, of his eyes and hair; the witness- answered that she did not recollect whether or not she had so testified. The prisoner then asked the witness whether she had no.t on several occasions when hot on oath daclafinl that Garrett was *3the person who came into the house and struck her husband because she distinctly saw him while standing on the hearth, and observed the color of his eyes and hair to be black. To this the witness answered that she did not recollect whether or not she had so stated. The defendant then offered to prove by the justice of the peace, and by'Other witnesses that the witness had on several occasions stated that the hair and eyes of the prisoner Garret were black, and that it w7as by the color of his eyes and hair that she recognized him to be the person whostruck her husband. . The defendant offered also to prove his. eyes and hair to be light. . The' court .rejected the evidence and the defendant excepted. The der. fendant being on his separate trial offered to introduce Young E. Miller, one of the persons indicted as above mentioned, but who was not then on trial, as a witness; the court refused to admit him and the defendant excepted. The defendant then offered to produce the transcript of the proceedings of the justices of the peace, who took the-examination of Garret and the other prisionera previously to their commitment on the - charge for which they were indicted, tp prove that such an examination was had, and offered to prove that on the examination before such justices one Lebo was sworn as a witness on part of the defendants, and that he testified that said Garrett was not guilty of the charge, and that said Lebo, since that time and before’ the. trial of said Garrett, had died; this evidence the court also rejected and the defendant, now plaintiff in error, excepted.
The plaintiff in error also moved for a new trial and excepted to the opinion of the court overruling the motion, the'ae several decisions of the circuit court are assigned for error, and the counsel of the defendant makes the following points:
1st. That the 'court erred in rejecting the evidence offered to prove what Polly Johnson had sworn and said in regard to the description of the appellant. ' •
2nd. That the court erred in rejecting Young E. ^Tiller as a witness, .
3rd. That the court erred in rejecting the evidence of what Lebo had sworn’ on the examination before tfiejus. tines.
^ ^ ness is asked <¡m his etoss-««ammation,. whether, on fcionrmieie°°ha¡J not made cer-menta, and answers, that he docs not rocollcct&itv-sichTtate-merits; lus kppeaehedk* h^did in fact make the írf'acoom" piice may be sl y/itness f#r others iu the same with himself, te iu>tdput sji his trial ^e^othersaso V&n j^(jvtdodCtCd ’ upo» disqualifies. him as a wii ness,
*41st., In third Starkie, p. 1753, it.is said “the credit-of'so witness may be impeached by cross examination subject-to> rules already mentioned,,or by general evidence affecting.: his credit, or by evidence that he. has done, or said that which - is inconsistent with his evidence on the trial,, or lastly .by contrary evidence, as to the facts themselves.’.’
“But whenever the credit of a. witness is to be impeached': by proof of any thing that he has said or declared or done.-, in relation to the cause, he is first, to be asked upon cross, examination whether he has said or. declaied or.done, that; which is intended to be proved.. If the witness admits tha-words, declaration or act, proof on the other side, becomes, unnecessary, and an opportunity is afforded to. the. witness, of giving such reasons, explanations, or exculpations, of his conduct, if any there be, as the circumstances may furnish:-' and thus the m hole matter is brought before, the. court at: once, which is the most convenient course.”
Having always understood this to be the law of the ea«e^ am °f that the. circuit court committed error in, rejecting the., evidence to preve the. declarations of Polhr> Johnson the witness..
2nd. An accomplice (2nd Starkie.22) as it seems is a com- - x \ 7 petent witness and may be. examined, if he be willing, al-he is indicted along with others, provided he be not, put upon trial along with the others; for an .indictment as. to-several is several as to each; so if he has pleaded guilty, or seParat#ly convicted, provided judgment has not been-pronounced upon him for an offence which disqualifies him.. The circuit court, in my opinion, committed error themin-not permitting the. defendant- to examine Miller as a wit-
The third point is that the court erred'in rejecting-.the evidence of Lebo’s- testimony given before the.examnitjg. Lebo, it is stated in the. bill of exceptions swore that the appellant Garrett was not guilty of the.- charge mads»» against him. — It is scarcely necessary to say that such tes-inadmisible. It is the, parte of tha witness, to-facts which may he known to him, and'from.these fafffis.. jury under the direction of the. court, find' whether *5acornee! is ■ guilty or not guilty. But it is desired that" opinion of this court should be made known, whether testimony of a witness (since dead) which has been saved by the committing officer can be given in-evidence on'¿the trial of the accused, when that testimony is preserved in a proper manner: for'it'is suggested that the bill of exceptions doe's ■not truly represent the testimony preserved by-the king court. In England it has been decided that on an in-dictmentfor a rape, the deposition of a girl taken before a 11 ° committing magistrate and signed by him may after her death be read in evidence at the trial of the prisoner, although it was not signed by her and she was under twelve r -tit t -1 years oí age, provided she was sworn and appeared, competent to take an oath.—Swifts digest, p. 125-6: to the same purposes is 1st. Starkie 97 and 2nd Russel on Crimes, 634—5. I am inclined to think on the authority of the books above cited that the testimony of a deceased witness taken, as that of Lebo, is stated to have been, ought to be received on evidence provided the subject matter itself be liable to no ■objection, as in case of the testimony of this same witness ■ as represented in the bill of exceptions.
IS permitted'-to state positively, that a offence against^ him, the witness facts,-which from 'these rytunderVh* direction of the court,ar« tofindwheth-guilty,
Appellants Brief.
“To reverse the judgment of the circuit court the appellant will insist upop the following points.”
1. That the court erred in rejecting the evidence offered 'to prove what Polly Johnson had sworn and said in regard 'to the description of the appellant, see Norris Peake 275-6, 1st, Starkie evi. 144-5 3d, Starkie evi. (1753 5) 2d, Russell, on Crimes 577-581, Richard D. Tucker ‘v Welsh 17 .Mass Rep. 161.
2d. That the court erred in rejecting Young E. Miller as a witness, 2d Russell on Crimes, 543, 2d Starkie evi. 23 Eng. Com. L. ¡,Rep. xxi 471.
2d. That the court erred la rejecting the testimony of what Lebo had sworn on the inquisition, see Swifts Digest 135-6, 1st, Starkie evi. 97, 4th Binn. Rep. Ill, 15th, J. ,R. 539, 2d, Russell on Crimes 634-5,1st, Phil. evi. 219 Eng. Com. L. Rep. III. 318.”
*5For the reasons above given the judgment of the circuit i • . . , , , . r -i n*-■court ought m my opinion to be reversed, ana Judge MeG-irk concurring in that opinion it is accordingly and the cause will be remanded to be proceeded in conform-ably to this opinion.
Appellee’s Brief.
‘T. When a witness is asked on his cross examination,, whether on a former occasion he has not made certain statements, and answers that he does not recollect having made such statements, evidence is.inadmissible to prove that he did make such statements. -
3. Starkie on evi, p. 1753, 4.' The Queens’ case Eng. Com. Law Reps, v 6. p. 130.Roscoe on evi. p. 141.
2. A party in the same indictment cannot be a,witness for his co-defendant, until he has been first acquitted or convicted; and whether the defendants plead jointly or separately makes no difference, 10th John Rep. p. 94 6 Cowen - p. 323,1 Hales’ P, C. 306, 6 Term Rep. p. 623.”