Van Deusen v. Van Slyck

Per Curiam. This case comes before the court on a writ of error to the common pleas of Montgomery county. It was an action of assault and battery; and upon the trial no evidence having been given against the defendant, John G. Van Deusen, application was made to the court for his discharge, that he might be examined as a witness for the other defendant. The court admitted that there was no testimony against him upon which he could be found guilty, but decided that they could not discharge him, because both defendants had joined in one plea. In this they erred. In actions for torts against several, although they join in the plea of not guilty, one may be found guilty and the other not guilty. The rule has been long and well settled, in such actions, that where there is no evidence against one of the defendants, he is entitled to his discharge, and may be examined as a witness for the other defendants. If this were not allowed, great injustice might be done by including witnesses in the suit, for the express purpose of shutting out their testimony. (2 Esp. Dig. 364. Phil. Ev. 61. 6 Bin. 316. 14 Johns. Rep. 122.) The judgment must, accordingly, be reversed. Judgment reversed.