
    Everett v. The State.
    
      Saturday, July 14.
    When several persons are jointly indicted, hut separately tried, either, if he consents, is competent to testify on hehalf of the other.
    APPEAL from the Marion Circuit Court.
   Gookins, J.

The appellant was indicted jointly with James Broughajrd, and William, Hinesley, for burglary. He was separately tried and convicted at the December term, 1854, of the Marion Circuit Court.

On the trial he offered as a witness in his behalf Hinesley, who was indicted with him, who had not been convicted, and who consented to testify on behalf of Everett. He was objected to by the state as incompetent, and his testimony was excluded, for the reason assigned.

The statute regulating practice in civil suits has this provision: No person offered as a witness shall be excluded from giving evidence in any judicial proceeding, by reason of incapacity from crime or interest; but this section shall not render competent a party to an action,” &c. 2 R. S. 1852, p. 80, s. 238.

R. L. Walpole, D. Wallace and T. D. Walpole, for the appellant.

D. C. Chipmcm and J. W. Gordon, for the state.

The statute regulating the practice in criminal cases, has the following section: “ The following persons are competent witnesses: 1st. All persons who are competent to testify in civil actions. 2d. The party injured by the offence committed. 3d. Accomplices, when they consent to testify.” 2 R. S. 1852, 372, s. 90.

It is also provided, that “when two or more defendants are indicted jointly, any defendant requiring it must be tried separately;” id., 375, s. 105; and when tried jointly, a defendant against whom sufficient evidence does not appear to put him on his defence, may be discharged by the Court, for the purpose of giving testimony for his co-defendant.

Under these statutes, we think Hinesley was a competent witness. If he could have been excluded at all, it was because he was a party to the suit; but as the right to a separate trial is absolute, when the defendants sever, it is as much a separate suit, in respect to each, as if they were separately indicted. The 105th section does not apply to the case; that refers to joint trials.

Per Curiam.

The judgment is reversed. Cause remanded, &c.  