14 Minn. 35 | Minn. | 1869
Lead Opinion
By the Gourt.
The first count of the indictment in this case charges the defendants with an assault upon Bernard Clark with intent to murder, and the second count with an assault upon the same person with intent to commit manslaughter. ■
A separate trial being alloived, the appéllant David
Testimony which would tend to cast doubt upon the credibility of Clark, was therefore important to the defendant. The assault is alleged to have taken place on the 17th day of February, 1868. Upon cross-examination by the defendant, Clark testified “ that the feeling between himself and the defendant was not friendly,- that he had charged the defendant with shooting colts belonging to him; that he had a suit pending against the defendant David Dee lipón that ground now. ” Upon further cross-examination, the defendant asked Clark: “Did you last fall, some time in the month of November, in FlcCormiek’s saloon, in Rochester, say in the hearing of Patrick Fogarty and others, £I will shoot him (meaning' the defendant) dead if he comes out to-night? ’ ” Upon an objection by the State, the ground of which does not appear, the question was excluded, and, as we think, -improperly. The right to ask a witness, upon cross-examination, whether he has not expressed feelings of hostility towards the party against whom he is called, is well settled. 1 Gr. Ev. Sec. 450; 1 Starkie Ev., 190; 2 Phillips Ev., 399. The object of testimony of this kind is to show a bias or prejudice on the part of the witness, which might affect his fairness and truthfulness, and such testimony is not regarded as collateral or irrelevant. But it is urged that the question was. properly excluded in this in- • stance, because the threat inquired about was made at a
It is further urged that the question was properly ex-
“ The defendant called as a witness Thomas Ireland, who testified that in February last, he was a constable in Po-chester; that he saw the witness Clark and the defendant David in the city of Rochester have some difficulty in the afternoon of the assault; that Clark had a drawn knife in his hand which he held in a threatening manner; that Ireland feared Clark would stab Dee, and told him to go away or he would arrest him ; that as Clark turned to go away he said, £I will cut his d-d guts .out.5” The defendant also “called as a witness Patrick Fogarty, by whom he
As the testimony excluded was offered for the purpose of showing that at the time of the assault the defendant had reason to believe that Clark intended to kill him, or inflict great bodily harm upon him, we think it should have been received. If without any fault upon his part, the defendant was attacked by Clark with a knife, and from previous threats and conduct on the part of Clark, brought to the defendant’s knowledge, and the circumstances of the attack, the defendant had reason to believe, and did believe, that Clark intended to kill him, or to do him some great bodily harm, he would in self defence be justified in using whatever means were necessary to prevent the threatened injury. The testimony excluded certainly had some tendency, espe- •
The defendant David Dee called as a witness his co-defendant "William Dee, who was sworn. The counsel for the State objected to the receiving of testimony from William Dee, on the ground that he was a co-defendant. The testimony was excluded, and in this the Court below erred. Sec. 7, Ch. 73, Gen. Stat., reads as follow's: “All persons, except 'as hereinafter provided, having the power and faculty to perceive and make known their perceptions to others, may be witnesses; neither parties nor other persons who have an interest in the event of an action are excluded. * * * But no defendant in a criminal action or proceeding shall be a competent witness therein for himself, nor until acquitted or convicted, for a co-defendant. ” The exceptions referred to in the section quoted, are not important in this case. If this section had not been changed, there would be no question that the exclusion of the testimony of William Dee, a co-defendant, who had not been tried, would have been proper. But by Ch. 70, p. 110, Laws 1868, the sec- ' tion cited was amended by striking out the last sentence of the same, and inserting the .following language: “ And on the trial of all indictments, complaints, and other proceedings against persons charged with the commission of crimes or offences, the person so charged shall at his request, but not otherwise, be deemed a competent witness, ” &c. (The
The repeal of that portion of section seven as it was originally enacted, which specifically excluded co-defendants, furnishes strong support to this construction. The language “ shall at his request, but not otherwise, be deemed a competent witness, ” can hardly apply to a co-defendant not on trial. A co-defendant not on trial, having no interest in the separate trial of his co-defendant, is not to be presumed to be in court. He may, and in many cases must, be in jail. What object could he have in requesting permission to testify even if opportunity were given' him ? How does he acquire a standing place in court from which to make the request ? He is neither a party to the trial, nor the attorney of a party. This view is, we think, still further supported by the subsequent language of the amend-' ment, which goes on to provide as follows: “ nor shall the neglect or refusal to testify create any presumption against the defendant. ”
How is it possible that the neglect or refusal of a co-defendant, not on trial, to testify could create any such presumption, if such co-defendant is competent only upon his own request?
And, finally, by its own terms this exception from the general rule of competency is provided for only '•’■on the trial of all indictments, ” &c. “ against persons charged, ” <fec. The separate trial of an indictment against one co-
Judgment reversed and a new trial directed.
Concurrence Opinion
I concur in the conclusion arrived at in this cáse.