Sawyer v. Merrill

Per Curiam. On general principles, the Court doubt [18] whether as a matter of policy and convenience an application like this ought to be granted. The petitioner would put it on the ground of newly discovered evidence ; but that is incorrect. It is the case of an incompetent witness having become competent. To grant the petition would be to make every case of a witness’s becoming competent, a ground for a new trial. After a trial, it is generally easy to find some additional or cumulative evidence ; but the rule is, that there shall not be a new trial, unless it is newly discovered evidence, and to some new point or ground of action or defence, to which the evidence given on the former trial did not apply.1 It is not pretended in the case before us, that the petitioner was not aware, at the time of the trial, of the evidence of which he now seeks an opportunity to avail himself upon a new trial. A party to the record cannot be a witness for a co-defendant ;2 but in an action of tort against several the court may direct the trial of one of them first, when it appears that there is no substantial evidence against him, and if acquitted he may be a witness for the other defendant.3 Whether such course shall be pursued, must necessarily be a question to the discretion of the judge at nisi prius. But a decisive reason against granting this application is, that upon a new trial, the petitioner could not avail himself of the testimony in question. If the verdict is set aside, the case must come to trial just as it did before, against both of the defend [19] ants. This rule is clear in civil actions. Bac. Abr. Trial, L ; 2 Dunlap’s Pr. 681. The Court think it is the proper rule, and if this verdict should be set aside, Bryant would be put on his trial again, after having been acquitted. There is one case where of three defendants in an action of trespass, two were acquitted and the third convicted, and a new trial was granted ; but this was with the consent of those who were acquitted. Leroux's case, cited 6 T. R. 625, 626. Petition dismissed. Footnotes [1] See Warren v. Hope, 6 Greenleaf, 479; Alsop v. Commercial Ins Co. 1 Sumner, 476; Ames v. Howard, 1 Sumner, 490, 491; People v. Sup Court of N. York, 10 Wendell, 285; Bullock v. Beach, 3 Vermont R. 73; Reed v. M' Grew, 5 Hammond, 386 ; Gardner v. Mitchell, 6 Pick. (2d ed.) 115, note. [2] See 2 Stark. Ev. (5th Am. ed.) 581; Blackett v. Weir, 5 Barn. & Cressw. 385; Bates v. Conkling, 10 Wendell, 389; Van Norden v. Striker, 9 Wendell, 286; Gilmore v. Bowden, 3 Fairfield, 412; Columbian Manuf. Co. v. Dutch, 13 Pick. 127; Vinal v. Burrill, 18 Pick. 29 ; Johnson v. Blackman, 11 Connect. R. 342; Hoak v. Hoak, 5 Watts, 80; Williams v. Beard, 3 Dana, 158; Commonwealth v. Marsh, post, 57, 58 [3] It is in general true, in actions of tort, that when the plaintiff has closed bis case, if no evidence has been produced against any particular defendant, he may be discharged by a verdict in his favor, and then he may be a witness for his co-defendants. Bates v. Conkling, 10 Wendell, 389; Van Dusen v. Van Slyck, 15 Johns. R. 223; Brown v. Howard, 14 Johns. R. 122; Elwell v. Martin, Ware, 53.