Hood v. Mathis

Leonard, Judge, delivered the opinion of the court. 1. The rule as to the acquittal of a defendant, in order that be may be examined as a witness for bis co-defendant, is thus stated by Gilbert, in bis Law of Evidence, p. 117: “ If any person be arbitrarily made a defendant to prevent bis testimony in tbe cause, be shall not prevail by that artifice, but tbe defendant against whom nothing is proved shall be sworn notwithstanding ; for here the defendant does not swear in bis own justification, but in justification of another, with whom be is joined in tbe action unnecessarily; and were not this allowed, it were but for tbe plaintiff to turn all the several witnesses into defendants, and be might be able to prove what be pleased, without contest; therefore, if there be an action of trespass against two, and there be no evidence against one of them, he may be evidence for tbe other.” In order, however, to render him a competent witness, the practice now is to direct tbe jury to find a separate verdict in bis favor, and the case being thus at an end as to him, his competency is restored. (1 Phil. Evidence, 56.) Some difference, it seems, has prevailed in tbe practice of tbe courts as to tbe point of time in tbe progress of the cause at which the acquittal is to take place. (1 Phil, on Ev. 57. Huxly v. Berg, 1 Stark. 98. Wright v. Paulin, 1 Ry. & Mo. Rep. 128. Wynne v. Anderson, 3 Car. & Payne, 596.) But in Child v. Chamberlain, (6 Car. & Payne, 216,) Park, Justice, said: “It has been settled by tbe unanimous opinion of tbe judges, that if there is no evidence against any one defendant, [312] at the conclusion o£ the case on the part of the plaintiff, such defendant is to be acquitted, so that all tbe defendants, not fixed by the plaintiff’s evidence, are to be acquitted before any part of the defendant’s evidence is gone into.” Gilbert (Law of Evidence, 118) states that the rule “ must be understood, where there is no manner of evidence at all against the defendant; for, if there be evidence against one, though not enough to convict him, in the judge’s opinion, yet such person can be no witness for the other, because his guilt or innocence must wait the event of the verdict, for the jury are the judges of the fact and not the judges and in Brown v. Howard, (14 John. Rep. 119,) it is said, “ where the least evidence is given against one of several wrongdoers, he cannot be discharged on the trial, for the purpose of being received as a witness.” The court, it seems, directs the acquittal, and of course, the rule is only applicable where there is a defect of evidence to carry the case to the jury as to the particular defendant whose discharge is asked for, of which the court is the proper judge, and not where the question is as to its sufficiency to convict the party, which is a matter to be submitted to the judgment of the jury. Under the English law, the rule cannot be applied to actions upon contracts, except, perhaps, in cases where one of several defendants has pleaded a personal discharge, as a certificate in bankruptcy. (Currie v. Child, 3 Camp. 283. Emmet v. Butler, 7 Taunt. 599. 1 Moore, 332. Bate v. Russell, Moody & Ma. 332.) But it is otherwise, under the altered condition of our law in relation to suits upon joint undertakings. (Campbell & another v. Hood, 7 Mo. Rep. 211.) 2. In the present case, however, we do not think that there was such a lack of evidence against Williams as made it the duty of the Circuit Court to direct his acquittal, in order that he might be examined as a witness for his co-defendant; but if there was, we could not reverse the judgment, because the application was made after the testimony and the argument on both sides was closed, at a time when it was altogether within [313] the discretion of the court whether the case should be opened for the admission of further evidence, and there is nothing in the record showing that this discretion was at all abused. 3. Neither did the court abuse its discretion in allowing the plaintiff to recall a witness to prove the value of corn ; the omission of this proof was a mere slip, unintentional, of course, and proper to be supplied. 4. We cannot discover any error in the ruling of the court as to the law of the case, either in the instructions given or in those refused. The action was for the use and occupation of land, and, of course, the plaintiff could not recover, unless the relation of landlord and tenant existed between him and the defendants ; and if it did, they were not at liberty to controvert his title. 5. The judgment was also properly entered against the defendant’s surety in the appeal bond, notwithstanding the acquittal in the Circuit Court of one of the two defendants against whom the original recovery was had. To hold otherwise, would be a very narrow construction of the statute, (R. C. 1845, tit. “Justices’ Courts,” art. 8, sections 3 and 4,) required neither by the words of the act nor the obvious intention of the legislature, and tending rather to defeat than to promote the administration of justice. The judgment must be affirmed.