State v. . Cotton

Stacy, O. J. The principal question for decision is whether separate indictments against husband and wife for the same homicide may be consolidated and tried together, over objection of defendants, when the wife’s testimony, though admitted only as to her, is inculpatory of the husband. A careful perusal of the present record engenders the conclusion that the testimony of the feme defendant was necessarily hurtful to her husband. It should be remembered that neither defendant was here competent or compellable to testify against the other. S. v. Harbison, 94 N. C., 885. Either might have testified for the other, but neither was competent to testify against the other. C. S., 1802; S. v. Jones, 89 N. C., 559. The defense of the wife tended strongly to incriminate the husband. They were not making a joint defense. Counsel for the husband felt impelled to cross-examine the wife following her examination-in-chief, as did the solicitor for the State also, and it was during these cross-examinations that her testimony was particularly harmful. It is true, the trial court carefully instructed the jury not to consider anything she said as evidence against the male defendant, but with the burden of the wife’s defense pointing unerringly to the husband’s guilt, it is not perceived how its baneful effect could be erased from the minds of the jury. S. v. Helms, post, 592. Without questioning the power of the court to consolidate cases for trial in proper instances, and its discretionary authority ordinarily to deal with an application for a severance, we are forced to the conclusion that on the instant record the provisions of C. S., 1802, have been impinged by reason of the character of the wife’s defense. It would seem that a mistrial and severance at the close of all the evidence would have been in order. *580 There are other exceptions appearing on the record worthy of consideration, especially the one addressed to certain exceptive remarks of the solicitor, but as these are not likely to arise on another hearing, we shall not consider them now. New trial. ClabksoN and Sea well, JJ., dissent.