
    The State vs. Tarlton S. McGrew, Amie Jourdain, and Guiot Leopold.
    
      Larceny — Practice—Right to sever in the trial — Evidence.
    Where two or more are jointly indicted for larceny, it is a matter of discretion with the Court whether they shall he allowed to sever in the trial; and this discretion is not necessarily controlled hy the fact that the wife of one of the defendants is proposed as a witness for another.
    That civil actions are pending for the alleged trespass in taking the stolen goods and for slander, to which the prosecutor is a party, plaintiff or defendant, does not make him an incompetent witness on the trial of the indictment for the larceny.
    The wife of one of the defendants held to he an incompetent witness.
    BEFORE DAWKINS, J., AT ORANGEBURG, SPRING TERM, 1866.
    Tbe report of bis Honor, tbe presiding Judge, is as follows:
    “Tbe defendants were jointly indicted for stealing a bale of cotton, tbe property of E. W. Bates, tbe prosecutor. A motion was' made on tbe part of tbe defendants for leave to sever in their trial on tbe ground as stated, that tbe wife of defendant, Jourdain, was a material witness, and would be excluded if tried together. I refused tbe motion. If tbe act was joint, it was proper they should be tried together. Dr. Bates, tbe prosecutor, was offered as a witness by tbe State, and objected to by tbe defendants, on the ground of interest, which arose from tbe pending of certain actions (referred to in second ground of appeal) commenced after tbe time of committing tbe supposed larceny, and which caused them, as was stated. I was unable to perceive that Dr. Bates bad any ' immediate and certain’ interest in tbe event of the indictment. Tbe record in this case would not be evidence in tbe civil actions. And if such an objection was sustained, it would enable a party charged with crime to exclude the testimony necessary for his conviction. The third ground is, because the wife of Jourdain, one of the defendants, was not admitted to be sworn as a witness for the defendant, McGrew. There is no objection that the evidence did not warrant the conclusion which the jury attained, which dispenses with the necessity of repeating it in full; nevertheless I will repeat so much as shows the participation of each. McGrew and Jourdain were brothers-in-law, living not exceeding a mile apart, and Jourdain had a still, either on his own account or as a part owner with McGrew, in the enclosure of the latter, and not further than thirty-five or forty yards from his house; and that McGrew had been to Orangeburg village the same day with a two-horse wagon, and in returning home was at Jourdain’s as late as ten o’clock at night. The other defendant, Leopold, was said to be a Frenchman, brought by McGrew from Charleston-about a week previous, and was in his employment. That the bale of cotton, as prosecutor supposed, would weigh four hundred pounds or upwards; was taken from his screw on the night of the 16th of December, carried by hand some two hundred or three hundred yards, where the persons carrying it appeared to have rested, placing it on a fence, which was somewhat broken by its weight; thence it was carried some distance along a road in the same way until they reached a hill, where the prosecutor and others discovered the track of a wagon which had been turned around near the edge of the road, and in which, judging from the appearances — cotton left on the ground and pieces of bagging — they supposed the cotton was placed. There were signs of cotton and scraps of bagging at several places, especially at the fence, from the screw to where the wagon-track was discovered. The track of the wagon was followed to the house of McGrew, and the wagon found within his enclosure. He refused permission to have his premises searched. The prosecutor went off to get a search-warrant, leaving some persons to watch the houses. Shortly after, the defendant, McGrew, went off, and returned in about half an hour accompanied by the other defendants. They went into the dwelling-house, where loud talking and threats were heard by those outside the enclosure where they were forbidden to enter, and in a few moments Leopold came out, went to the kitchen and got the key of the cotton house, which he entered, and where, as witness said, a noise was made like as he was 'handling something heavy.’ He came out with some bagging and rope rolled up under his arm, which he threw down on the floor of the piazza of the dwelling as he entered. Shortly thereafter he came out, picked up the bagging and rope, carried and put it in the furnace of the still. He again returned to the cotton house and brought to the door a large tin-vessel, where he was met by Jourdain, and they together carried and put it on the still. Jourdain had the fire kindled and rekindled in the furnace, where the bagging and rope were put, under the pretence of stilling, though it was about eleven o’clock on Sunday, and it did not appear that any previous preparation had been made for the purpose. When Leopold entered the cotton house there was no cotton on Ms clothes; when he came out the witness said 'they were covered with it.’ A large bulk of cotton, which had been packed and from which the bagging and rope appeared to have been recently removed, remained, and was found in the cotton house when entered. The discovery of the loss and pursuit were the next morning after the cotton was taken.
    " These facts I thought sufficient to create a suspicion, at least, of participation by Jourdain and Leopold in the original taking, and therefore held the wife of Jourdain, one of the defendants, an incompetent witness. Eos. Crim.Ev. 148, and n. 4.
    ''I instructed the jury that the aid which Jourdain and Leopold gave in. the attempt to conceal the theft (however censurable) did not make them liable in the indictment; but that, in connection with the circumstances, might satisfy them that they were concerned in the original taking, and, if so, they should be found guilty. I was gratified that the jury were enabled to take the most favorable view for defendants, Jourdain and Leopold, and found them 'not guilty.’ They found the defendant, Tarlton S. McGrew, ' guilty.’
    “ After I had made out the foregoing report, I received from the attorney for defendant a request to add a further ground, ' that the verdict is contrary to the evidence.’ Disposed to give defendant every chance for a full hearing, I have furnished a copy of my notes of the evidence.”
    The defendant appealed, and now moved this Court for a new trial, on the grounds:
    1. That his Honor refused to allow the prisoners to be tried separately, which was moved and urged on the part of T. S. McGrew, on the ground that E. E. Jourdain, the wife of one of the defendants, was a material witness in his behalf.
    2. That his Honor admitted E. W. Bates, the prosecutor, to be sworn on the part of the State, whereas it was shown that he was directly interested in the event of the trial, inasmuch as there were four actions, ex delicto, pending, in “trespass de bonis asportatis,” “ trespass Q. 0. E.,” “ trover,” and “ slander,” in each of which he was a party, plaintiff or defendant ; and the cotton which was the subject of the alleged larceny was the gist of the action.
    3. That his Honor refused to admit E. E. Jourdain, the wife of the defendant, Amie Jourdain, to be sworn as a witness for the defendant, Tarlton S. McGrew.
    4. That the verdict is not sustained by the evidence, generally, but particularly in this, that the cotton found in the cotton house of defendant was not identified by the prosecu- . tor as the cotton alleged to have been stolen.
    
      W. J. De Treville, Fielding, for appellant.
    The wife of one defendant being material witness for co-defendant is sufficient ground for'a separate trial. Eos. Crim. Ev. 148, n. 3, citing Com. vs. Fastland, 1 Mass. 15 ; Case of Shaw, 1 Eogers E. 177 ; People vs. Colburn, 1 W. Crim. C. 479 ; State vs. Anthony, 1. McC. 285. Prosecutor and defendant both claiming title to the property, prosecutor not competent witness. State vs. Kane, 1 McC. 482. Buie as to incompetency of wife relaxed. Eos. Crim. Ev. 148. Competent witness in certain cases. Sills’ case,1 Carr & Kirwan, 494; BexYS.Inhab.Bathwiclc, 2 B. & A. 639; Phil. Ev., n. 73, p. 80, cases cited.
    
      Youmans, solicitor, contra.
   The opinion of the Court was delivered by

DUNKIN, C. J.

In the case of The State vs. Wise and Johnson, 7 Rich. 412, it was authoritatively settled, that where two or more persons are jointly charged in the same indictment with a capital offence, they have not a right by law to be tried separately. Such separate trial is a matter to be allowed or refused in the sound discretion of the Court. And this case is fully sustained by United States vs. Marchant, 12 Wheat. 400, where the subject is discussed and the authorities analyzed by Mr. Justice Story, delivering the judgment of the Supreme Court. Nor is this discretion necessarily controlled by the fact that the wife of one of the parties accused is proposed as a witness for another party. The offence charged was a joint act. If it had been proposed to set up a distinct ground of defence on the part of the defendant — such, for instance, as to establish an “ alibi” — the authorities are not concurrent as to the competency of the wife of the other defendant to testify. See Roscoe Crim. Ev. 149; 1 Phil. Ev. 160. But no such ground of defence was suggested, nor is it easy to conceive that, upon the case made, the wife of Jourdain could have given any testimony which would not necessarily have had an influence in establishing the guilt or innocence of her husband.

Eor the reasons stated in the report of the presiding Judge, the testimony of the prosecutor, Dr. E. W. Bates, was properly received.

Upon the fourth and last ground, alleging a defect of evidence to warrant the conviction, the Court has only to remark that the defendant was tried by a jury of his neighbors, probably well acquainted with the localities, and best qualified to estimate the weight of credit to be attached to the evidence of the witnesses, as well as the value of the defendant’s general character, which he thought proper to put in issue. After a reperusal of the testimony, the Court is constrained to say that they perceive no error in the conclusions of the jury, sustained, as they evidently are, by the concurrence of the Judge who presided at the trial.

The several grounds are overruled, and the motion for a new trial is dismissed.

Wabdlaw and Inglis, J. J., concurred.

Motion dismissed.  