51 Me. 125 | Me. | 1863
The opinion of the Court was drawn up by
The respondents were jointly indicted for inciting one Pendextor to set fire to and burn a building. On arraignment, Pike pleaded guilty and Jones pleaded not guilty. On the trial of Jones, he offered Pike as a witness, who, being objected to by the government, was excluded by the presiding Judge. To this exclusion, Jones filed his exceptions.
The general rule of law is, that parties to the record, in a criminal case, cannot be witnesses for each other. The recent statute, (1861, c. 53,) removes all objection to the witness on the ground of infamy, by reason of a conviction for a criminal offence. But this does not affect the question arising from the fact that the witness is a party to the record.
There are, however, exceptions to the general rule. One is, that if no evidence is given against one of several joint defendants, the Court may order his acquittal and he may be used as a witness by them. 1 Hale’s P. C., 306 ; 2 Hawkins’ P. C., c. 46, § 94; Sawyer v. Merrill, 15 Pick., 17.
The question in this case is, whether a co-defendant', after a plea of guilty on his part, may be called as a witness by the other defendant. It seems to be settled that he cannot
If the defendant, who is offered as a witness, has been convicted by a verdict of guilty, he may be a witness for the others, before sentence, or, after sentence, if not thereby rendered infamous. The same result necessarily follows where he is convict by plea of guilty. Regina v. Ford & al., 1 Carr. & Marshman, 111, (41 E. C. L. R., 66,) Ballard v. Noaks, 2 Pick., 45; Blackford, 119; Wharton’s Am. Cr. Law, § 794. Exceptions sustained.
New trial granted.