
    Robert Davis v. The State of Ohio.
    In case of a joint indictment against two or more persons for burglary, and one of them is being separately tried, it is competent for the prosecution to give evidence tending to prove that one of the accused not on trial, as well as the one on trial, was present and participating in the commission of the crime; and that, very shortly before the commission of the crime, the two were consorting with each other and secretly consulting: but,' such evidence having been given by the State, it is error in the court to exclude evidence offered by the accused on trial, tending to prove that the other was not, or could not have been, present and participating in the crime.
    Error to tbe court of common pleas of Darke county.
    The case is sufficiently stated in the opinion of the court.
    
      D. 8. MeeJeer and W. Allen for plaintiff in error:
    1. The court below erred in permitting Walter W. French, • and other witnesses called by the State, to give testimony tending to identify Luke French, a co-defendant not on trial, as one of the parties present at and engaged in the commission of the alleged burglary and larceny.
    2. The court erred in refusing to permit the defendant below to produce testimony tending to show that Luke French was not present at or participating in’.the alleged burglary, and in refusing to permit the witness called by the defendant to state the whereabouts of Luke French at the time of the commission of the alleged burglary.
    It was incompetent to identify other parties than. the defendant on trial as accomplices of the defendant, especially when such other parties were co-defendants not yet on trial.
    If such evidence was admissible, it must have been on account of its materiality as a means of identifying the defendant on trial; yet we cannot think that the State has the right of identifying a party on trial, and of proving his guilt, by proving the guilt of a third party not on tidal, who has never been convicted.
    But if it be competent to show the guilt of the defendant, or to corroborate testimony tending to show his .guilt, by proving that he committed the crime alleged, in connection with other parties, and to prove who the other parties were, then, by all that is reasonable and just, the defendant ought to be permitted to show that the evidence of the State is untrue upon this point, by proving that the accomplice who is thus attempted to be identified as present at the commission of the offence, was, in fact, at another place, and could not have been, participating in the alleged offence at the time and place stated.
    From the testimony shown by the record, it is quite apparent that Davis, whose identification by the testimony was of the slightest character, was convicted on the more certain identification of.Luke French. Yet when Davis attempted to relieve himself from evidence" of guilt based on the identity of Luke French, as one of the parties present at the commission of the offence, by offering to prove that at the time of the commission of the offence Luke French was at Richmond, fourteen miles distant, and was not at the place of the burglary, the testimony is objected to, and overruled. In this the court erred.
    
      O. L. Vallandigham for the State:
    Supposing the court below to have erred in excluding the testimony offered by Davis, to show that Luke French was at Richmond at a certain time the night of the burglary, we yet claim, that, upon a review of the whole record, it will appear that no prejudice to the rights of Davis occurred; that the verdict was right, and the jury must have found the same way had the testimony been admitted. See Scovern v. The State, 6 Ohio St. 288, 294; Dickey v. Beatty, 14 id. 394; Way & Co. v. Langley, 15 id. 392.
    
      G. Galldns, also for the State:
    The court did not err in permitting the witness Walter French to state all the facts concerning the burglary; and in doing so it was competent for him to give the names of the persons who were present, as well as their acts. Wharton’s Am. Crim. Law, 863.
    The evidence offered by Davis to prove the whereabouts of Luke French was properly rejected. It was only offered to prove an alibi on the part of Luke French, who was not on trial. Evidence tending to prove that he was not at the scene of the burglary does not disprove the guilt of the defendant. An issue as to the alibi of Luke French was foreign to the indictment. The testimony rejected, would not, if admitted, have proved an aUbi on his part.
    Davis was not prejudiced by the rejection of the evidence in question, for the record conclusively shows that he was. properly convicted. Sumner v. Com., 3 Cush. 521.
   BRnsnEgERHOKF, CM.

The plaintiff in error, Robert. Davis, was jointly indicted with Luke French and two others, for burglary and larceny, in breaking into the dwelling and stealing the money of Walter W. French. On the motion of Davis he was accorded a separate trial; and on the trial the testimony of Walter W. French, the prosecuting witness, showed, in substance, that his house was broken and entered by four men, between twelve and one o’clock at night, himself seized, bound, and held in custody by some of them, while the others broke open his safe, and stole from it a large sum of money. That the men were masked, so that he could not distinguish their faces ; but, from his observations as to the size, shape, build, and voices of the, men, he testified to a strong belief op his part that one of them was Davis, and to a still stronger and more confident belief that another one of them was Luke French, a co-defendant in the indictment, but not then on trial, The accused parties all resided at Richmond, Indiana — some fourteen miles from the place where the crime was committed; and evidence, though objected to, was admitted and given, tending to prove that Davis, Lube French, and others of the accused, were seen in company with each other, engaged in secret conference, and acting mysteriously, during the evening preceding the burglary. Also to prove that a carriage drawn by two horses had been rapidly driven' that night between Richmond and about a quarter of a mile from the place of the burglary, and there hitched; and that a carriage rug had been found the following morning on the road to Richmond, not far from the place of the burglary; and to this was added evidence tending to identify the rug as one fitting to a carriage belonging to a brother of Luke French, who kept a. livery stable in Richmond.

This and other evidence having been given, tending to establish the allegations of the indictment against Davis, the prosecution rested,’ and thereupon, among other things, counsel for the defence offered evidence tending to prove that Luke French was at Richmond at so late an hour of the night during which the crime was committed, that he could not have been present and participating in it ,* or, in other words, to prove, substantially, an alibi as to him. This evidence being objected to on the part of the prosecution, was excluded by the court; and this ruling, among other things, is assigned for error.

We are of opinion that the evidence given by the State, tending to connect Davis and Luke French with each other in the commission of the crime, charged against them, was competent, and would be on the separate trial of either of them. But it was evidence tending necessarily to damage the case of Davis, and he had the right to rebut it, and to j)rove, if he could, that Luke French did not participate in the crime, and so relieve himself from the effect of the fact that he had been seen consorting with him.

We see no other error in the record and proceedings.

Judgment reversed, new trial awarded, and cause remanded.

Scott, Welch, White, and Day, JJ., concurred.  