People v. Donnelly — 2 Park. Crim. Rep. 182

Majority

p. 182

Supreme Court. New York General Term,

April, 1855.

Mitchell, Morris and Clerke, Justices.

The People vs. Michael Donnelly, impl’d with Beales and al.

Headnote

Where several persons are jointly indicted, one of them is not a competent witness for or against the others, without'being first acquitted or convicted; and it makes no difference whether the defendants plead jointly or separately. An accomplice separately indicted is competent.

The defendant had been convicted partly on the testimony of a defendant jointly indicted with him without discharging such codefendant from the record.

It is well settled and I believe never questioned in this state or in England, that where several persons are jointly indicted, one is not a competent witness either for or against the. others, without being first acquitted or convicted; and it makes no difference whether the defendants plead jointly or separately; an accomplice, however, separately indicted is.r competent. Whether there is any good reason for this distinction, it is unnecessary to inquire on the present occasion.

Beales, although a joint defendant, was admitted as a witness against Donnelly in this case, without discharging him from the record.

The judgment should be reversed and a new trial ordered,

In 1 Ryan & Moody, 401, (Rex v. Rowland and others,) the counsel for the crown moved to have an acquittal against two of the defendants, that he might use them as witnesses. It was treated as necessary and allowed. (See also the note there.) So a case is stated in Cases Temp. Hardwicke, 163, where on an information at the suit of the crown, it was deemed necessary to enter a nol. pros, against one of the defendants before examining him against the others. Our own courts have decided that one defendant in an indictment can not be a witness for another; it can not be on the ground of interest, for

p. 183

there is no interest either way; and if it be because he is a party to the record, it applies whether he be called for the people or his codefendants.

Judgment reversed and new trial ordered.