Peters, C. J.
Mary E. Barrows and Oscar E. Blaney were .jointly indicted for murder. She was separately tried. Blaney, without any further disposition of the indictment as to him. than his plea of not .guilty, was called as a witness against her. The bill of exceptions presents the question, whether, if two are indicted jointly, and one pleads not guilty, his testimony, if he .consents to be a witness, is admissible for the state on the separate trial •of the other defendant.
[407] In this state, it is a question to be" decided upon the principles of the common law as amended or modulated by statutory provisions.
As a question simply at common law, although there is a contradiction in the cases, the preponderance of authority seems to favor the admission of a co-defendant, not on trial, as a witness, if called by the prosecution. There is very much less authority allowing him to he sworn as a witness for the defense. Whether the distinction be a sensible one or not, it has prevailed extensively. There are really but a few adjudged cases upon the point whether such testimony is admissible for the state, for the reason, probably, that a prosecuting attorney can avoid the question by omitting to indict one party, or by obtaining separate indictments. The defendant having no such election, the cases affecting the testimony in his behalf are more numerous.
Most of the authors on evidence evidently adopt the view that the testimony is admissible when offered by the state. Although but little authority is adduced to support their statements, and the doctrine is not very clearly or positively stated in some instances, still such a general concurrence of favorable expression has much weight upon the question. It goes far to show the common opinion and practice. Hawkins, P. C. book 2, ch. 46, § 90 ; 1 Hale, P. C. 305 ; 2 Starkie, Ev. 11; Roscoe, Crim. Ev. (9th ed.) 130, 140 ; 2 Russell, Crimes, 957. Mr. Wharton says, " An accomplice is a competent witness for the prosecution, although his expectation of pardon depends upon the defendant’s conviction, and although he is a co-rdefendant, provided in the latter case his trial is severed from that of the defendant against whom he is offered.” Whart. Cr. Ev. (8th ed.) § 439. Mr. Greenleaf states the same rule. He says, "The usual course is, to leave out of the indictment those who are to be called as witnesses; but it makes no difference as to the admissibility of an accomplice, whether he is indicted or not, if he has not been put on his trial at the same time with his companions in guilt.” 1 Greenl. Ev. § 379.
The counsel for the defendant places especial reliance on Mr. Bishop as an opposing authority. That learned commentator [408] evidently attaches more weight to that side of the question than other writers do. 1 Bish. Cr. Proc. (3rd ed.) § § 1020, 1166. But Mr. Bishop states that all the cases are not in accord with his text, and also says; in a note to the section cited supra, that the late English doctrine seems to differ from the rule recognized by him. We find it to be so. Late English cases are quite emphatical to that effect. The Queen v. Thompson, L. R. 1 C. C. 378; The Queen v. Winsor, L. R. 1 Q. B. 390; The Queen v. Payne, L. R. 1 C. C. 349; The Queen v. Deeley, 11 Cox. C. C. 607. The defendant’s'counsel, however, in their able and exhaustive brief, contend that the late English cases are based upon acts of parliament in amendment of the common law. It cannot be so, for Chief Justice Cockburn in The Queen v. Payne, supra, declares the rule to be according to the law "as it has existed from, the earliest times,” and other judges gave their opinion that the new enactments were not intended to apply to criminal cases. See cases, supra.
The question before us does not appear in any reported case in this state. State v. Jones, 51 Maine, 125, approaching the question nearer than any other case, merely decides that when two are indicted, and one pleads guilty, his testimony is admissible for the other defendant. Kent, J., says in the opinion r "It seems to be settled that he cannot be thus called whilst the charge in the indictment is ponding and undisposed of against him. And this, whether he is to be tried separately or jointly.” That is, the defendant cannot be called by the co-defendant. The latter remarks are a correct statement of the law of New York, and New York cases are cited in support of it. See 17 Alb. L. J. 421. In 1876, however, the privilege of calling a co-defendant to testify, before that time possessed by the prosecution only, was extended by a legislative enactment to all parties. 18 Alb. L. J. 160. The case of Lindsay v. The People, 63 N. Y. 143, relied upon by the defendant’s counsel, upon a correct understanding of it, does not contradict previous decisions in that state.
The argument against the admission of such evidence does not strike us with much force. It is almost universally admitted [409] that an accomplice separately indicted may be a witness for the state, and any distinction arising between trials on a joint indictment and trials on separate indictments is not readily appreciated. The crime is supposed to be jointly committed in either case. If there are separate indictments, the fact of joint criminality is not withheld from the jury. It is not improper to aver it by way of recital or description. The interest and motives of the witness, must be the same whether he is to be afterwards tried under the same or another indictment. As said by Beasley, J., in a convincing argument of the question in State v. Brien,, 3 Vroom, 414 : "The only reason for the rejection of such a witness is, that his own accusation of crime is written on the same piece of paper with the charge against the culprit whose trial is in progress.”
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Peters, C. J.
Mary E. Barrows and Oscar E. Blaney were .jointly indicted for murder. She was separately tried. Blaney, without any further disposition of the indictment as to him. than his plea of not .guilty, was called as a witness against her. The bill of exceptions presents the question, whether, if two are indicted jointly, and one pleads not guilty, his testimony, if he .consents to be a witness, is admissible for the state on the separate trial •of the other defendant.
[407] In this state, it is a question to be" decided upon the principles of the common law as amended or modulated by statutory provisions.
As a question simply at common law, although there is a contradiction in the cases, the preponderance of authority seems to favor the admission of a co-defendant, not on trial, as a witness, if called by the prosecution. There is very much less authority allowing him to he sworn as a witness for the defense. Whether the distinction be a sensible one or not, it has prevailed extensively. There are really but a few adjudged cases upon the point whether such testimony is admissible for the state, for the reason, probably, that a prosecuting attorney can avoid the question by omitting to indict one party, or by obtaining separate indictments. The defendant having no such election, the cases affecting the testimony in his behalf are more numerous.
Most of the authors on evidence evidently adopt the view that the testimony is admissible when offered by the state. Although but little authority is adduced to support their statements, and the doctrine is not very clearly or positively stated in some instances, still such a general concurrence of favorable expression has much weight upon the question. It goes far to show the common opinion and practice. Hawkins, P. C. book 2, ch. 46, § 90 ; 1 Hale, P. C. 305 ; 2 Starkie, Ev. 11; Roscoe, Crim. Ev. (9th ed.) 130, 140 ; 2 Russell, Crimes, 957. Mr. Wharton says, " An accomplice is a competent witness for the prosecution, although his expectation of pardon depends upon the defendant’s conviction, and although he is a co-rdefendant, provided in the latter case his trial is severed from that of the defendant against whom he is offered.” Whart. Cr. Ev. (8th ed.) § 439. Mr. Greenleaf states the same rule. He says, "The usual course is, to leave out of the indictment those who are to be called as witnesses; but it makes no difference as to the admissibility of an accomplice, whether he is indicted or not, if he has not been put on his trial at the same time with his companions in guilt.” 1 Greenl. Ev. § 379.
The counsel for the defendant places especial reliance on Mr. Bishop as an opposing authority. That learned commentator [408] evidently attaches more weight to that side of the question than other writers do. 1 Bish. Cr. Proc. (3rd ed.) § § 1020, 1166. But Mr. Bishop states that all the cases are not in accord with his text, and also says; in a note to the section cited supra, that the late English doctrine seems to differ from the rule recognized by him. We find it to be so. Late English cases are quite emphatical to that effect. The Queen v. Thompson, L. R. 1 C. C. 378; The Queen v. Winsor, L. R. 1 Q. B. 390; The Queen v. Payne, L. R. 1 C. C. 349; The Queen v. Deeley, 11 Cox. C. C. 607. The defendant’s'counsel, however, in their able and exhaustive brief, contend that the late English cases are based upon acts of parliament in amendment of the common law. It cannot be so, for Chief Justice Cockburn in The Queen v. Payne, supra, declares the rule to be according to the law "as it has existed from, the earliest times,” and other judges gave their opinion that the new enactments were not intended to apply to criminal cases. See cases, supra.
The question before us does not appear in any reported case in this state. State v. Jones, 51 Maine, 125, approaching the question nearer than any other case, merely decides that when two are indicted, and one pleads guilty, his testimony is admissible for the other defendant. Kent, J., says in the opinion r "It seems to be settled that he cannot be thus called whilst the charge in the indictment is ponding and undisposed of against him. And this, whether he is to be tried separately or jointly.” That is, the defendant cannot be called by the co-defendant. The latter remarks are a correct statement of the law of New York, and New York cases are cited in support of it. See 17 Alb. L. J. 421. In 1876, however, the privilege of calling a co-defendant to testify, before that time possessed by the prosecution only, was extended by a legislative enactment to all parties. 18 Alb. L. J. 160. The case of Lindsay v. The People, 63 N. Y. 143, relied upon by the defendant’s counsel, upon a correct understanding of it, does not contradict previous decisions in that state.
The argument against the admission of such evidence does not strike us with much force. It is almost universally admitted [409] that an accomplice separately indicted may be a witness for the state, and any distinction arising between trials on a joint indictment and trials on separate indictments is not readily appreciated. The crime is supposed to be jointly committed in either case. If there are separate indictments, the fact of joint criminality is not withheld from the jury. It is not improper to aver it by way of recital or description. The interest and motives of the witness, must be the same whether he is to be afterwards tried under the same or another indictment. As said by Beasley, J., in a convincing argument of the question in State v. Brien,, 3 Vroom, 414 : "The only reason for the rejection of such a witness is, that his own accusation of crime is written on the same piece of paper with the charge against the culprit whose trial is in progress.”
The reason at first given for not allowing a party to testify was his interest. The old common law shuddered at the idea of any person testifying who had the least interest. But that reason failed sometimes. In many civil cases a party had no interest. Then it was decided that public policy or expediency prevented the reception of the testimony. A party to the record was not permitted to testify, whether interested or not. If only a nominal plaintiff, he could not testify either for the plaintiff or defendant. Kennedy v. Niles, 14 Maine, 54. Without much reasoning upon the subject, the law pronounced against it. The rule was general. But, as stringent as the rule was, it did not apply to indictments to its full extent. The parallel between civil and criminal cases was not kept up. If a man was indicted and pleaded guilty, he could testify for his co-defendant. State v. Jones, supra. If, however, he was sued for the same cause, and became defaulted, he could not testify for his co-defendant. Gilmore v. Bowden, 12 Maine, 412. Courts seemed inclined not to regard a co-defendant- in a criminal case as a party, unless "a party to the issue on trial.” That distinction is taken in the English cases before cited. To be incompetent to testify, the defendants must be in charge, of the same jury. Mr. Starkie struck the same key, who declared that " an indictment against [410] several is several as to each.” It is plainly seen that there is much authority and reason for regarding an indictment of two or more persons as in effect, a joint and several indictment; joint, when the accused are tried jointly; and several, when tried separately.
But, as before intimated, we are not to look upon the question before us as exclusively one at common law. Our statutory enactments bear upon it. They have weakened if not abrogated the argument of public policy. It was, no doubt, the design of the legislature that the objection to the competency of parties as witnesses should be removed in both civil and criminal cases, In civil cases the door is opened widely. In criminal cases the provision is this : " In all criminal trials, the accused shall, at his own request, but not otherwise, be-a competent witness. . . The husband or wife of. the accused is a competent witness.” R. S., c. 134, § 19. While this enactment does not cover the present question with literal exactness, it approaches it, affects and influences it, and requires us to examine the matter in the light of the legislative policy declared by it. If both defendants were on trial at the same time either could testify. Com. v. Brown, 130 Mass. 279. If the argument for the defendant is sound, then the common law rule has become reversed. Defendants can testify against each other when tried together, and cannot so testify when tried apart. We do not assent to such a proposition.
The admission of the evidence did no injustice. It bore less heavily upon the defendant than it would have if the witness had not been himself indicted. As Lord Hale says, the indictment against him "doth much weaken and disparage his testimony.” It would present a singular inconsistency in criminal procedure, if even one’s wife may be compelled to testify against him, and a co-defendant, on trial, may be called from the dock to the witness stand, but a companion in guilt, included in the same indictment, not on trial, be excluded therefrom.
Exceptions were taken to some portions of the charge of the judge to the jury. No argument has been submitted in their [411] support. They are clearly untenable, and require of us only a passing word.
Exceptions overruled.
Walton, Virgin, Libbey, Emery and Haskell, JJ., concurred.