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State v. Ludwick.
The prisoner was indicted as principal, and his mother, the wife of the witness, was indicted as accessory before the fact. The prisoner was alone on trial; and the question is, Was the husband called to give evidence for the wife? That depends upon, Whether evidence for the prisoner was evidence for her; and that depends upon Whether the acquittal of the prisoner would in its legal effect be an acquittal of the wife.
At common law an accessory before the fact could not be convicted, unless the principal when tried at the same time was first convicted; or unless he had been before tried, convicted, and received judgment. Duncan's case, 6 Ire., 98. That decision called for legislative interference; and to remedy the defect in the common law, it was enacted, Rev. Code, c. 34 s. 53, that "any person counselling &c., the commission of a felony, shall be deemed guilty of felony, and may be indicted and convicted, either as accessory before the fact to the principal felony, together with the principal felon, or may be indicted and convicted of a substantive felony, whether the principal felon shall or shall not have been previously convicted or shall or shall not be amenable to justice.” This statute alters the common law, and puts out of the way the necessity of a prior conviction and attainder of the principal felon, but it has not even the most remote bearing upon a case where the prisoner charged as principal felon has been tried and acquitted. That is left as at common law, and the notion that when it is decided by the judgment of the law that no felony has been committed, and that the person charged as the principal felon is not guilty, one charged as being accessory before the fact can be tried and convicted, is out of the question, for there is no fact and no principal. That an acquittal of the principal is an acquittal of the accessory is settled by all of the books-2 Hawk, P. C. ch. 29, sec. 40; 4 Rep. 43, in which latter book my Lord Coke
State v. Ludwick.
says that the maxim of the law is, "ubi factum nullum, ibi fortia nulla; et ubi non est principalis non potest esse accessorius." This maxim is extended to all offences which cannot be committed except by more than one person. In Tom's case, 2 Dev., 569, it is held in an indictment for a conspiracy against two, that the acquittal of one is the acquittal of the other. So in Mainor's case, 6 Ire., 340, and Parham's case, 5 Jon., 416, (indictments for fornication and adultery)—it is held that an acquittal of one is an acquittal of the other; for it takes two to commit the offense, and when it is fixed by judgment at law that one is not guilty, it follows that the other cannot be guilty; and in Mainor's case, supra, although the jury found the man guilty, yet as they found the woman not guilty, it was held to be an acquittal of both, upon the settled rule in regard to the acquittal of the principal being in legal effect the acquittal of the accessory.
It is therefore perfectly clear that if the prisoner had been acquitted, it would have been an acquittal of the wife of the witness, consequently the witness was called to give evi
dence for his wife.
We find nothing in the act of 1866, ch. 43, "An act to improve the law of evidence," to change this view of the subject, for in sec. 3 it is provided that "nothing contained in the second section of this act shall render any person competent or compellable in a criminal proceeding to give evidence for or against himself, or any husband competent or compellable to give evidence for or against his wife," &c. Suppose the mother had been called to give evidence for the prisoner, she was incompetent, as it would be giving evidence for herself, and, for the like reason the husband was incompetent, and could not give evidence for his wife. There is no error. This will be certified to the end, &c.
There is no error.
State v. Rose and Vaughan.
STATE v. WILLIAM D. ROSE AND RICHARD VAUGHAN.
Where two or more persons are on trial under one indictment for the same offence they are, by the act of 1866, ch. 43, competent and compellable to give evidence for or against each other, though one of them cannot be a witness for or against himself, or for or against his wife, (and e converso), and is not compellable to answer any question tending to criminate himself. (State v. Ludwick, ante p. 401 cited and approved.)
LARCENY, tried before Fowle, J., at Fall Term 1867 of the Superior Court of NORTHAMPTON.
Upon the trial each defendant offered to introduce his co-defendant, and also the wife of his co-defendant as witnesses, for himself but not for such co-defendant. His Honor rejected the witneess thus offered. The evidence being circumstantial, the defendants also proposed to prove that other persons lived nearer than themselves to the house where the theft was committed, and that the character of some of those persons was bad for honesty. The court rejected the proof and the defendants again excepted. Verdict of guilty, judgment and appeal.
Merrimon, for the appellants.
Atto. Gen., contra.
1. The punishment is authorized by act of Assembly, 1866-7, chap. 30.
2. The "act to improve the law of evidence," ratified the 12th March, 1866, chap. 43, is the act of 14 and 15 Victoria, and does not change the law of evidence as applicable to this case. S. v. Mills, 2 Dev. 420; S. v. Chitty, 2 Dev. 453; S. v. Smith, 2 Ire. 405; Powell on Evidence, Law Lib., vol. 86, page 37; Rex v. Smith and others, 2 Eng. Cr. Cas., 280.
State v. Rose and Vaughan.
PEARSON, C. J. Although the second and third sections of the act of 1866, ch. 43, entitled "An act to improve the law of evidence," correspond substantially with the act 14 and 15 Victoria, yet the preamble, and the first and fourth sections, give to the act a character of its own; so it must be construed by itself, and the court can derive but little aid from the decision of other courts.
Our statute, by its preamble, sets out an intention to take away the objection to witnesses on the ground of incompetency, and put it merely on the ground of credit, both in civil and criminal cases-to abrogate the rules of evidence, which had been fixed by the fathers of the law with a view to exclude falsehood even at the risk of sometimes excluding truth, and to admit truth at all hazards, although the door for the admission of falsehood should thereby be spread wide open.
Accordingly, it is enacted by the first section that no person offered as a witness shall be excluded from "giving evidence on the trial of any issue, or any matter or question arising in any suit or proceeding, civil or criminal, in any court, or before any judge, justice or jury, &c., on the ground of incompetency by reason of interest or crime." And by the second section it is enacted that, on the trial of any issue, or of any matter or question arising in any suit or other proceeding in any court,or before any judge, justice or jury, &c., the parties and the person in whose behalf any suit or other proceeding may be brought or defended shall, “except as hereinafter provided," be competent and compellable to give evidence in behalf of either or any of the parties to said suit or other proceeding."
It will be seen that this section corresponds precisely in the general terms used with the first section, only omitting the words "civil or criminal," in their connection with "any suit or other proceeding." Had the statute stopped at the
State v. Rose and Vaughan.
second section, the omission of these two words might have given rise to some slight difficulty as to the construction; but the words "except as hereinafter provided " followed by the third and fourth sections, remove all difficulty whatever and make it manifest that parties on the record, as well in criminal, as in civil proceedings, are made competent and compellable to give evidence except as provided in the third and fourth sections.
By the third section it is enacted, that nothing in the second section shall render any person who in any criminal proceeding is charged with the commission of an indictable offense, competent or compellable to give evidence for or against himself, or shall render any person compellable, to answer any question tending to criminate himself; or shall, in any criminal proceeding, render any husband competent or compellable to give evidence for or against his wife," &c.
By the fourth section it is enacted that nothing contained in the second section shall apply to any proceeding institu ted in consequence of adultery, or to any action for breach of promise of marriage.
These exceptions clearly prove the general rule, and leave no sort of doubt that it was the intention to make parties who are on trial for the same criminal offense charged in the same indictment, competent and compellable to give evidence for or against each other, save that a party is not to give evidence for or against himself, or for or against his wife, (and e converso), and is not compellable to answer any question tending to criminate himself.
Indeed, this conclusion in regard to the competency of parties to the record would have almost followed from a proper construction of the first section, for the rule which excludes parties of record is based on the ground of interest or crime: the indictment found raising a presumption of