Merrick, J.
The defendants, of whom Robinson, Smith and Williams are charged as principals, and Gardner and Babbitt as accessories before the fact, were all put upon trial at the same time; and each of them was convicted of the crime alleged against him. Being dissatisfied with the course of proceedings upon the trial, and professing to feel aggrieved by some of the rulings and determinations of the presiding judge in relation to questions of law which then arose, they severally filed and procured the allowance of the bills of exception which are before us.
That ,,of Williams is first in order, and may first be considered. It appears from the statement of facts contained in it, that to sustain their defence the wife of Babbitt was called and offered by the other defendants, as a witness in their behalf; but that, upon objection being made to her competency, the objection was sustained, and her testimony rejected. And the question now is, whether the defendants were deprived, by its exclusion, of any of the means of defence to which they were legally entitled. And we think they were not. It is an inflexible rule of evidence that parties of record, whether in civil oi criminal cases, are not admissible as witnesses for each other [560]*560Commonwealth v. Marsh, 10 Pick. 57. Sawyer v. Merrill, 10 Pick. 16. And it has been established by a series of uniform decisions, that the wife of one of several defendants, accused of a crime alleged to have been jointly committed, is an incompetent witness, when all of them are on trial, for any of his associates. Rex v. Frederick, 2 Stra. 1095. Rex v. Smith, 1 Mood. C. C. 289. Rex v. Locker, 5 Esp. R. 107. Commonwealth v. Easland, 1 Mass. 15. It is an immaterial consideration that, in the present case, the defendants asked for and were denied separate trials. We can reexamine, upon a bill of exceptions, only those questions of law which arose and were ruled upon in the trial which actually took place. Matters within the discretion of the court below are not grounds of exception under the statute. The court of common pleas had authority, and it was clearly within the discretion of the presiding judge, to determine whether the motion for separate trials should be granted or refused. And his decision upon that subject is final and conclusive, and subject to no subsequent revision. United States v. Marchant, 12 Wheat. 480. Witherlee v. Ocean Ins. Co. 24 Pick. 67. Kimball v. Thompson, 4 Cush. 445.
It must be assumed, that the evidence, relating to the other indictment pending against the same parties, which was adduced upon and by means of the cross examination of Rice, by the counsel of Babbitt, was pertinent to his defence. He had therefore a right to avail himself of it, and to submit it to the consideration of the jury, although its introduction was opposed by the other defendants. When, at an earlier stage of the trial, it was offered by the Commonwealth for the purpose of affecting them, it was upon their objection properly rejected by the court. But that did not deprive Babbitt of any right of his in relation to it. It is one of the peculiarities of the trial of an indictment against several persons, who are jointly charged with the commission of one and the same crime, that each is entitled to pursue and maintain for himself his own peculiar line of defence This may sometimes require the introduction of evidence, on the part of one or more of the defendants, to which another may be opposed, and to which, if tried alone, he might successfully in[561]*561terpose an objection. But it is the duty of the court to see, that by whomsoever it is introduced, it is all properly applied ; that those, who are entitled to avail themselves of it, shall enjoy the advantages to be derived from it, and that all others, against whom it could not legally be brought to bear, shall be scrupulously and completely screened from its effect. No complaint is made, that the presiding judge did not, in allowing a cross examination of Rice, take care that this proper and necessary discrimination should be observed, or that he failed to give to the jury appropriate and correct instructions, relative to the application of the evidence thus permitted to be introduced, and to the use they were to make of it in reference to each and all of the defendants. And it is to be presumed, that, accompanied by such instruction, its just and legitimate effect, and no more, was given to it by the jury; and that if it aided one, it was not allowed to harm or prejudice any other of the defendants. They have no cause therefore of exception to the course of proceeding which in this instance was permitted by the court.
The evidence offered by Babbitt, to meet and repel the imputation upon his official conduct which the Commonwealth attempted to establish, was admissible, and he ought to have had the privilege of laying it before the jury. He was charged in the indictment with aiding and assisting the principal offenders in the commission of the burglary, as an accessory before the fact. Proof that, after he knew they were prosecuted, he favored their escape; that when, in his capacity of deputy sheriff, he had a warrant against them, and should have pursued them with diligence and vigor, he was intentionally negligent and unfaithful in the discharge of his duty; and that he moved and conducted himself in a manner calculated to screen them from arrest, would tend very strongly to maintain the indictment against him. These facts the Commonwealth for that purpose endeavored to establish. It was therefore of. the utmost degree of importance to him to show in his own vindication, that his conduct, in the particular instance in which it was denounced as collusive and criminal, was not only innocent, and warranted by the circumstances in which he was placed, but was required by [562]*562the information which he obtained for the very purpose of enabling him' promptly to discharge his duty. One of the means, by which an officer, having a warrant against an accused party, may most effectually execute it, is by inquiries of others as to the supposed place of his concealment, the road and direction in which he may have been seen travelling, or the way in which he may have escaped. The officer may therefore always avail himself of the information which such inquiries elicit; and if it has been sought for in good faith, and confided in when given, it will justify conduct which is the reasonable or natural consequence of it. It was evidence concerning such inquiries, of the answers and the information thereby obtained, which the defendant offered to produce, but which was held to be incompetent, and for that reason rejected. This was erroneous. He ought to have been permitted to show what inquiries were made by Nye " and himself of the persons whom they casually met, while they were in pursuit of Robinson and Pond, and what communications were made to them in reply. The evidence was admissible, and its proper effect, when received, was to be judged of by the jury.
The testimony of Appleton Clark, having been offered bj Babbitt to show that the intimacy and frequent intercourse 'between himself and Robinson, which the Commonwealth had proved in order to evince the existence of a guilty connection between them, was induced by a good motive, and was in fact for a lawful and commendable purpose, should have been admitted.
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Merrick, J.
The defendants, of whom Robinson, Smith and Williams are charged as principals, and Gardner and Babbitt as accessories before the fact, were all put upon trial at the same time; and each of them was convicted of the crime alleged against him. Being dissatisfied with the course of proceedings upon the trial, and professing to feel aggrieved by some of the rulings and determinations of the presiding judge in relation to questions of law which then arose, they severally filed and procured the allowance of the bills of exception which are before us.
That ,,of Williams is first in order, and may first be considered. It appears from the statement of facts contained in it, that to sustain their defence the wife of Babbitt was called and offered by the other defendants, as a witness in their behalf; but that, upon objection being made to her competency, the objection was sustained, and her testimony rejected. And the question now is, whether the defendants were deprived, by its exclusion, of any of the means of defence to which they were legally entitled. And we think they were not. It is an inflexible rule of evidence that parties of record, whether in civil oi criminal cases, are not admissible as witnesses for each other [560]*560Commonwealth v. Marsh, 10 Pick. 57. Sawyer v. Merrill, 10 Pick. 16. And it has been established by a series of uniform decisions, that the wife of one of several defendants, accused of a crime alleged to have been jointly committed, is an incompetent witness, when all of them are on trial, for any of his associates. Rex v. Frederick, 2 Stra. 1095. Rex v. Smith, 1 Mood. C. C. 289. Rex v. Locker, 5 Esp. R. 107. Commonwealth v. Easland, 1 Mass. 15. It is an immaterial consideration that, in the present case, the defendants asked for and were denied separate trials. We can reexamine, upon a bill of exceptions, only those questions of law which arose and were ruled upon in the trial which actually took place. Matters within the discretion of the court below are not grounds of exception under the statute. The court of common pleas had authority, and it was clearly within the discretion of the presiding judge, to determine whether the motion for separate trials should be granted or refused. And his decision upon that subject is final and conclusive, and subject to no subsequent revision. United States v. Marchant, 12 Wheat. 480. Witherlee v. Ocean Ins. Co. 24 Pick. 67. Kimball v. Thompson, 4 Cush. 445.
It must be assumed, that the evidence, relating to the other indictment pending against the same parties, which was adduced upon and by means of the cross examination of Rice, by the counsel of Babbitt, was pertinent to his defence. He had therefore a right to avail himself of it, and to submit it to the consideration of the jury, although its introduction was opposed by the other defendants. When, at an earlier stage of the trial, it was offered by the Commonwealth for the purpose of affecting them, it was upon their objection properly rejected by the court. But that did not deprive Babbitt of any right of his in relation to it. It is one of the peculiarities of the trial of an indictment against several persons, who are jointly charged with the commission of one and the same crime, that each is entitled to pursue and maintain for himself his own peculiar line of defence This may sometimes require the introduction of evidence, on the part of one or more of the defendants, to which another may be opposed, and to which, if tried alone, he might successfully in[561]*561terpose an objection. But it is the duty of the court to see, that by whomsoever it is introduced, it is all properly applied ; that those, who are entitled to avail themselves of it, shall enjoy the advantages to be derived from it, and that all others, against whom it could not legally be brought to bear, shall be scrupulously and completely screened from its effect. No complaint is made, that the presiding judge did not, in allowing a cross examination of Rice, take care that this proper and necessary discrimination should be observed, or that he failed to give to the jury appropriate and correct instructions, relative to the application of the evidence thus permitted to be introduced, and to the use they were to make of it in reference to each and all of the defendants. And it is to be presumed, that, accompanied by such instruction, its just and legitimate effect, and no more, was given to it by the jury; and that if it aided one, it was not allowed to harm or prejudice any other of the defendants. They have no cause therefore of exception to the course of proceeding which in this instance was permitted by the court.
The evidence offered by Babbitt, to meet and repel the imputation upon his official conduct which the Commonwealth attempted to establish, was admissible, and he ought to have had the privilege of laying it before the jury. He was charged in the indictment with aiding and assisting the principal offenders in the commission of the burglary, as an accessory before the fact. Proof that, after he knew they were prosecuted, he favored their escape; that when, in his capacity of deputy sheriff, he had a warrant against them, and should have pursued them with diligence and vigor, he was intentionally negligent and unfaithful in the discharge of his duty; and that he moved and conducted himself in a manner calculated to screen them from arrest, would tend very strongly to maintain the indictment against him. These facts the Commonwealth for that purpose endeavored to establish. It was therefore of. the utmost degree of importance to him to show in his own vindication, that his conduct, in the particular instance in which it was denounced as collusive and criminal, was not only innocent, and warranted by the circumstances in which he was placed, but was required by [562]*562the information which he obtained for the very purpose of enabling him' promptly to discharge his duty. One of the means, by which an officer, having a warrant against an accused party, may most effectually execute it, is by inquiries of others as to the supposed place of his concealment, the road and direction in which he may have been seen travelling, or the way in which he may have escaped. The officer may therefore always avail himself of the information which such inquiries elicit; and if it has been sought for in good faith, and confided in when given, it will justify conduct which is the reasonable or natural consequence of it. It was evidence concerning such inquiries, of the answers and the information thereby obtained, which the defendant offered to produce, but which was held to be incompetent, and for that reason rejected. This was erroneous. He ought to have been permitted to show what inquiries were made by Nye " and himself of the persons whom they casually met, while they were in pursuit of Robinson and Pond, and what communications were made to them in reply. The evidence was admissible, and its proper effect, when received, was to be judged of by the jury.
The testimony of Appleton Clark, having been offered bj Babbitt to show that the intimacy and frequent intercourse 'between himself and Robinson, which the Commonwealth had proved in order to evince the existence of a guilty connection between them, was induced by a good motive, and was in fact for a lawful and commendable purpose, should have been admitted. Perhaps his having declined to introduce it, after all objection to its reception had been withdrawn on the part of the Commonwealth, might well be construed a waiver of his right of exception to the ruling by which it had been excluded. But that is immaterial, since the testimony was again rejected by the court, as incompetent for any purpose whatever, when the defendant, upon the cross examination of Clark, who was subsequently produced as a witness against him, proposed to him interrogatories designed to elicit the explanation, and endeavored in that way to obtain it.
The copy of the Barre Gazette also, under the circumstances [563]*563stated, upon its genuineness being conceded or duly authentic cated, was admissible in his defence when offered in evidence by Babbitt. But its exclusion was of no real disadvantage to him, since it appears that the fact of the advertised time of the arrival of the Ware stage at Barre, and of his knowledge of it, had already been established by other undisputed evidence in the case. It is very doubtful therefore, whether we should have considered its rejection, under such circumstances, as affording any cause for disturbing the verdict.
Robinson, Gardner and Smith alleged the same exceptions, which are severally set forth by Williams and by Babbitt. There is nothing in the latter pertaining to any objection which it was competent for either of these parties to take, nor in the exceptions of Williams which can be more available to them than to him.
It results from these considerations that the exceptions of Babbitt must be sustained, the verdict against him set aside and a new trial granted. The exceptions of all the other parties must be overruled. And the indictment is remitted to the court of common pleas for all necessary further proceedings.
When an indictment is brought from the court of common pleas into this court by force of the provisions of the Rev. Sts. c. 138, relative to exceptions, and is afterwards, when the exceptions are here disposed of, ordered to be remitted to that court for further proceedings, it may be sent to it either at a term then being held, or which shall next afterwards be held in and for the same county where it was found by the grand jury, as this court shall direct. If no express direction is given, it will go to the term to be held next after the order for its remission is made.
Exceptions of Babbitt sustained; of the other defendants^ overruled; and case remitted to the court of common pleas now in session.