become competent. fendants, one of them may sometimes be so circumstanced as Sometimes may to be a competent witness: so in criminal prosecutions, one of several persons jointly indicted may sometimes be competent to give evidence either for the prosecution or for his codefendants. Thus, upon an information by the crown against two or more, if a nolle prosequi be entered by the attorney Nolle prosequi. general, either before or at the trial, as to one of the defendants, such defendant may be called as a witness for the crown against his co-defendant. (1) So where, upon a joint indictment against two, one had pleaded in abatement, and for want of Plea in abatereplication judgment had been entered that he should be dis- ment and judgmissed and discharged, he was admitted, without objection, as a competent witness, for the other defendant, being himself no longer interested in the event of the prosecution. (2) ment. dict. One of several defendants may also be rendered competent Separate verin some cases, by a separate verdict at the trial. Thus, where several persons were jointly indicted for a conspiracy, Lord Tenterden permitted a verdict of acquittal to be taken in favour of two defendants, at the request of the prosecutor's counsel, before the case was opened, in order that they might be called as witnesses against the others. (3) And where, upon an indictment against several, it appears at the close of the case for the prosecution, that there is no evidence against one of the defendants, he is entitled to a separate verdict of acquittal, and may then be called as a witness on behalf of the others. (4) This is upon the same principle, that is commonly acted upon in the case of an action of tort against several defendants, where no evidence is adduced against one or more of them. It has also been decided, that upon an indictment against two defendants for an assault, one of them who had pleaded guilty, and was fined and paid the fine, might be called as a witness on behalf of the other defendant, who had pleaded (1) Bul. N. P. 285. Per Lord Hardw. Rep. temp. Hardw. 163, and see per Lord Hardwicke, Ward t. Man, 2 Atk. 229. (2) R. v. Shearman and others, Rep. temp. Hardw. 303. (3) R. v. Rowland and others, Ry. & Mo. N. P. C. 401. See ante, where some of these cases (4) R. v. Mutineers of the Bounty, 98. Judgment by default. not guilty; the trial being at an end with respect to the witness. (1) In R. v. Lafone, (2) a defendant, who had suffered judgment by default to an indictment for a misdemeanor, was tendered as a witness at the trial on behalf of another defendant who had pleaded, but Lord Ellenborough said, he had never known such evidence admitted, and he rejected the witness. "The admission of such evidence," said his Lordship, " might be extended to every other criminal case, and thus one of the party who suffers judgment by default may protect the rest: there is a community of guilt, they are all engaged in an unlawful proceeding, the offence is the offence of all, not of a single individual only." (3) (1) R. v. Fletcher, 1 Stra. 633. (3) No authorities appear to have doing so, for his credit would be for the consideration of the jury. It is not easy to understand the concluding observations attributed to Lord Ellenborough. The guilt of a party who has suffered judgment by default is admitted; but the guilt or innocence of a party who has pleaded, remains to be ascertained by the verdict of the jury. To state, therefore, that there is a community of guilt, and that the offence is the offence of all, is, with regard to the defendant, who has pleaded, to assume the very question which the jury have to try; and, with regard to the witness himself, we have already seen, in treating of the evidence of accomplices, that a party who admits himself to be guilty of an offence for which another is indicted, is a competent witness for the prisoner as well as for the prosecution, unless he has been rendered incompetent by actual conviction of a crime producing infamy. 71 CHAPTER VII. OF THE RULE OF INTEREST WITH REGARD TO PERSONS NOT THE general principle, on which a witness, interested in the event of a cause, is incompetent to give evidence in support of such interest, has already been stated, and we have examined into the application of this rule, with regard to the persons who are, in general, most obviously and immediately interested in the event of a suit, viz. the parties to the record. We have now to consider the application of the rule with regard to ordinary witnesses. This inquiry will be found of a more extensive and complicated description than that which has just been completed, and it is scarcely possible to reconcile the earlier cases on the subject with those of more recent date. The earlier cases were generally decided on very narrow grounds. "The old cases on the competency of witnesses," said Lord Mansfield, "have gone upon very subtle grounds: but, of late years, the courts have endeavoured, as far as possible, consistently with those authorities, to let the objection go to the credit rather than the competency of the witness." (1) The general rule is laid down by Gilbert, C. B., in these General rule. words, "The law looks upon a witness as interested, where there is a certain benefit or disadvantage attending the consequence of the cause one way." (2) And Mr. Justice Buller, in the case of the King v. Prosser, says, "I take the rule to be this, if the witness can derive no benefit from the cause before the court, he is competent." (3) (1) 1 T. R. 300. Walton v. Shelley, cit. per Lord Kenyon, 3 T. R. 32, and see R. v. Bray, Ca. temp. Hardw. 360. (2) Gilb. Evid. 106-7. (3) 4 T. R. 20, and see B. N. P. 284. Direct interest. 2. Indirect interest. In inquiring into the competency of the parties to the record in civil suits, it has been seen, that in general they are incompetent to give evidence, by reason of a direct interest in the event of the suit. Many cases arise, in which persons not being parties to the record are open to same objection. Thus, the nominal plaintiff on the record may sometimes have no real interest in the question at issue, and the action may be prosecuted solely for the benefit of a third person who is not a party to the record: and if at the trial such person were tendered as a witness in support of the plaintiff's case, he would be obviously incompetent, by reason of the direct interest which he would have in obtaining a verdict for the plaintiff; for such verdict, when obtained, would enure to his own benefit, and the witness therefore would have a much stronger interest than the plaintiff' himself, in obtaining a favourable termination of the cause. The same principle would of course be equally applicable with regard to the defendant, as with regard to the plaintiff. And it would hold equally in the case of a partial, as well as an entire interest in the subject matter of the action. In all such cases there would be a certain benefit or disadvantage directly resulting to the witness from a favourable or unfavourable verdict, and he would therefore be incompetent to give evidence, by reason of this direct interest in the event of the suit. But a direct and immediate benefit or disadvantage from the result of the suit was not the only species of interest, which at one time rendered a witness, not a party to the record, incompetent to give evidence. For until the passing of a recent statute, which has effected a material alteration in the law, in this respect, and the provisions of which will be fully stated hereafter, (1) witnesses who were neither parties to the record, nor had any direct interest in the event of the suit, were often rendered incompetent, by reason of an indirect interest in the record, with regard to some subsequent suit. This description of interest has already been adverted to, in treating of the competency of the prosecutor, or party grieved, to give evidence in a criminal prosecution; and it has been seen (1) Stat. 3 & 4 W. 3, c. 42, 8. 26, 27. that an objection to his competency was formerly supposed to exist, on the ground that he might be able to avail himself of the record of a conviction as evidence, in support of his own interest, in some subsequent civil suit. But when it became a settled rule, that a judgment in a criminal prosecution, could in no case be used as evidence in a subsequent civil suit, on behalf of a party who had been a witness for the prosecution, the foundation of this objection failed, and the prosecutor or party grieved was held not to be disqualified by reason of this supposed indirect interest in the record. In like manner, with regard to the parties to civil suits, it will be found, upon an examination of the cases that have been decided with respect to their competency to appear as witnesses, that they are generally disqualified, by reason of a direct and immediate interest in the event of the suit, and that when they are free from this direct interest, no objection can be raised to their competency on the ground of such an indirect interest in the record. But with respect to ordinary witnesses the case was often different, and they were, in many instances, open to the objection of an indirect interest, in cases where they could derive no immediate benefit or disadvantage from the termination of the particular suit. In treating, in a subsequent part of the volume, upon the admissibility and effect of former judgments as evidence in a subsequent suit, it will be seen, that they are in general conclusive evidence of the facts that appear to have been decided by the record, if the same question should arise again between the same parties; (1) but that they are not, in general, admissible evidence in a subsequent suit by or against a party who was a stranger to the former proceedings. To the latter branch of the rule there are, however, some exceptions, and a judgment in a civil suit may in several cases be admissible in evidence for or against a person who was not a party to the former suit. Thus, if an action be brought by or against one of several persons, who claim a customary right of common, or some other (1) Post, Part 11. |