
    *Andrew Campbell v. The Commonwealth.
    Criminal Law -Joint Indictments -Several Trials— Witnesses. — Where two persons are jointly inflicted of a felony, and severally tried, the Co-Defendant in the same Indictment is not a competent witness for the prisoner, unless that Co-Defendant has "been acquitted.
    game — Failure to Examine Prisoner — Right to Object after Verdict. — After verdict and judgment in felony, against a prisoner, he cannot have'a Writ of Error to reverse the judgment, on the ground, that he was not examined for the felony of which he was indicted, and has been convicted.
    
      The principal case is cited in Blair v. Com., 25 Gratt. 855.
    
      This was an application for a Writ of Error to a judgment of the Superior Court of Law for Kanawha county, whereby the petitioner was sentenced to a confinement in the Penitentiary-house for eighteen months.
    The Indictment was against Alexander Campbell and the petitioner, jointly, and charged them with the larceny of one barrel of Salt, of the value of two dollars, of the goods and chattels, of one Gardner Hunt,, and three barrels of Salt, of the value of six dollars, of the goods and chattels of one Holley Hunt. The petitioner was first arraigned separately, pleaded, and was tried and convicted separately.
    On the next day, Alexander Campbell was tried and acquitted.
    The petitioner, being brought to the Bar to receive his sentence, applied to the Court for a new trial, on the following grounds: 1. That his father, Alexander Campbell, who wás jointly indicted with him for the same felony, and on the trial of the prisoner was offered as a witness on his part, was rejected, when he ought to have been received to give testimony. 2. That as the said Alexander Campbell is now acquitted of the felony whereof he stood indicted, when this Defendant was tried, a new trial ought to be granted, to enable him to receive the benefit of the evidence of the said Alexander Campbell as a witness. 3. That the Attorney for the Commonwealth having elected to try this Defendant first, whereby Alexander Campbell’s trial and acquittal was postponed until after the trial and conviction of the Defendant, was matter of surprise, and an undue advantage taken of him, by which he lost the benefit of the said Alexander’s evidence. This motion or a new trial, was over-ruled by the Court, because the said Alexander Campbell was jointly indicted with the prisoner, as a principal in the same felony, and was not acquitted, or discharged thereof, at the time he was offered as a witness; *and because the evidence on the trial of the prisoner proved to the satisfaction of the Court, that the said Alexander was an acbomplice in the felony whereof the said prisoner is convicted; and also, because from the whole evidence, the Court is satisfied with the verdict rendered by the jury in this case. The prisoner excepted to the opinion of the Court.
    In his application for a Writ of Error, the petitioner not only relied on the alleged error of the Court, in refusing to grant him a new trial, but also on-the position, that the petitioner had not been examined for the offence of which he was indicted; and that there was a variance between the charge in the Examining Court and that in the Superior Court, in this, that the prisoner and Alexander Campbell were examined for stealing four barrels of Salt, the property of Austin Hunt and Garner Hunt, whereas they were indicted for stealing one barrel of Gardner Hunt, and three barrels of Holley Hunt.
    Stevenson, for the petitioner, said that there appeared to be a difference between the practice in England and in this country, as to the trial of persons jointly indicted ; that in England, it would seem, that the Court may compel a joint trial of those jointly indicted. Eor this he referred to Buller’s opinion, in 3 Term Rep. p. 106 ; Eoster’s Crown Law, 3, ch. 2, and the argument of Riker and Emmet, in 4 Johns. 298, The People v. Howell. But it was understood to be different here, for in consequence of the ■inconvenience of the-prisoners refusing to unite in their challenges, the practice always was to sever the trials, where either prisoner required it. Case of the Pirates, in 1819, before Marshall, C. J. He argued, that if the trials be separate, the joint Indictment operates merely as a several Indictment against each : and that if several persons are indicted separately for the same offence, those who are not tried, and not convicted, are competent witnesses for the others. In support of this, he cited 1 Hale, 305, 1 Chitty’s Cr. Law, 605 ; Macnally, 204; Philipps, 37; and Johnson v. Bourne, 1 Wash. 187.
    Robertson, Attorney General, said that he believed the Law in England, and in this country, exactly the same as to the right of those jointly indicted, to be separately tried.
    *He contented, that on a joint Indictment against two or more for felony, one cannot, before pardon, or acquittal, be a witness for the others : In support of this position, he relied on 1 Hale, 303-306; 12 Viner, 33, pi. 11; lb. 40, pi. 1, 4, 5 ; Philipps, 61, 62, a, and the Cases there cited ; The People v. Bill, 10 Johns. 95, (expressly iñ point;) 2 Hawk. p. 608, § 18 ; Bacon’s Abr. “Evidence,” A. 5. He had not found a single Case to the contrary. Macnally refers only to separate Indictments for misdemes-nors. He thought it questionable, to say no more, whether one who is particeps criminis, can be witness for another, in felony, even where there are separate Indictments, if it appears they are charged with the same offence: though it seems, accomplices may be accusers when they acknowledge their guilt, (1 Hale, 303,) or witnesses for or against, when not indicted, or when pardoned or acquitted ; or, perhaps, in Criminal as well as Civil trials, where they are included through covin, and there, be no evidence against them: otherwise, if there be even colorable evidence against them. 1 Hale, 606.
    
      
       Criminal Law — Joint Indictments -Several Trials— Witnesses. — The principal case holds that where two persons are jointly indicted of a felony, and severally tried, the co-defendant in the same indictment is not a competent witness for the prisoner unless that co-defendant has "been acquitted. In Lazier’s Case, 10 Gratt. 716, 719, the principal case is cited, hut that case holds upon the authority of sec. 21, ch. 199, Code 1849, that where two persons are jointly indicted for the same offence, and tried separately, one is not an incompetent witness for the other by reason of such joint indictment. See also, sec. 3900, Code 1887. See monographic note, on ‘'Indictments, In-formations and Presentments” appended to Boyle v. Com., 14 Gratt. 674.
    
    
      
       Same — Failure to Examine Prisoner — Right to Object after Verdict. — On this subject, see the principal case cited in foot-note to Com. v. Cohen, 2 Va. Cas. 158; Angel v. Com., 2 Va. Cas. 231; State v. Stewart, 7 W. Va. 734.
    
   SUMMERS, J.,

delivered the opinion of the Court:

In this Case, the prisoner applied for a Writ of Error to a judgment of the Superior Court, pronounced on a verdict convicting him of larceny, on an Indictment charging the offence to have been committed by the prisoner, and one Alexander Campbell, who, on trial, was acquitted thereof.

The first error alleged, presents the same enquiry as was presented in the Case of William Angel, and in Joseph Cohen’s Case, namely, whether after a trial on the merits, on a plea putting in i.ssue the charges contained in the Indictment, and nothing more, the prisoner can, on a motion in arrest of judgment, look into the regularity of the proceedings of the Examining Court. We all think that he cannot, and that such irreg- I ularity, if it exists, can only be taken advantage of by a plea in abatement, or on a motion to quash previous to pleading to the Indictment, and that the decision in the Cases of Cohen and Angel, ought not to be disturbed.

«The principal error assigned by the prisoner’s Counsel, for reversing the judgment, has received the careful consideration of the Court, and. although some of the authorities referred to by him, seem to look to a principle broad enough to transfer the objection made to the examination of Alexander Campbell, (as a witness,) from his competency to his credibility, yet the Court is of opinion, that it is a well-settled rule of evidence, that a party in the same suit or Indictment, cannot be a witness for his Co-Defendant, until he has been first acquitted, or, in some cases, convicted, whether the Defendants be jointly or severally tried. 1 Hale, 303-306. This rule is evidenced as well by the earlier decisions of the English Courts, as by a more recent determination of Eord Ellenborough, in the Case of The King v. Lafone and others, 5 Esp. Rep. 155, and by the Supreme Court of New York, in the Case of The People v. Bill, 10 Johns. Rep. 95. Nor is the authority of this rule shaken by the supposed difference of the Courts in England exercising a discretionary power of trying offenders indicted jointly, either separately, or together, and the restraining influence of our Laws upon such discretion in Virginia. In England, as well as in this country, where the accused are entitled to peremptory challenges, joint trials cannot be had, but by consent of the prisoners, and on their waving such rights as are incompatible with that form of trial; and the Case cited from 4 Johns. Rep. 298, only shews that where several persons are jointly indicted of an offence for the trial of which they are not entitled to peremptory challenges, that it is not error to try them together, although they may desire to sever in their trials.

The objection taken to the decision of the Court below, over-ruling the application for a new trial, on the ground that Alexander Campbell being restored to his competency by his acquittal, formed a sufficient legal ground for setting aside the verdict, has nothing in it. It falls within none of the principles upon which new trials have been granted heretofore, and would have been repugnant to some of the best established rules in relation to that subject. Therefore, upon the whole matter, the application for a Writ of Error is over-ruled. 
      
       November Term, 1820, ante, p. 231.
     
      
       June Term, 1819, ante, p. 158.
     