
    Moffit vs. The State.
    ■. Moffit and Taylor were jointly indicted for an assault and battery, and Moffit, upon his motion, put on his trial first and separately ; hold that the wife of Taylor was a competent witness for Moffit.
    * At the June term, 1838, of the circuit court of Lincoln county, the grand jury indicted William Moffit, James H. Moffit and James Taylor, for an assault and battery upon the body of John Grigsby, by binding him to a tree, scourging him with rods, and thereby ■inflicting upon him divers wounds and bruises. The defendants pleaded not gijilty, and issue was joined thereupon. The cause was continued till the June term. The defendants, William Moffit and. James Taylor, were put upon their trial, and averdict rendered against Moffit for the sum of $500, and against Taylor for the sum-of $200. This verdict was set aside upon motion of the defendants and a new trial awarded them. At the June term, 1839, the canse was called for trial. William Moffit then presented the following affidavit to the court:
    “William Moffit, one of the defendants, makes oath that Mariah Taylor, the wife of James Taylor, is a material witness for him in the trial of this case. He is informed and. believes, that he can prove by said witness, that he was at home through the night on which he is charged with the commission of the crime alledged in the indictment, which, if committed at all, was committed at a different place. He farther states, that James Taylor, the husband of the said Mariah Taylor, is jointly indicted with him and another in this case, but that she has intermarried with said Taylor since said crime was committed. He, therefore, prays that himself and the other defendant may be permitted to have their trial separate from said James Taylor, in order that they may have the benefit of the testimony of said Mariah.”
    The prayer of this affidavit prevailed and the defendants Wil-liana Moffit and James H. Moffit were first put upon their trial before a jury of Lincoln, A. J. Marchbanks, presiding. The witness on the part of the State testified that on the — day of February, 1838, at night, in the county of Lincoln, the prosecutor, John Grigsby, was taken out of his bed by five men, disguised, and carried to the forest, bound to a tree and severely scourged with rods, and that two of the five men engaged in this act were the defendants, William and James H. Moffit.
    
      The defendants then introduced the above mentioned Mariah Taylor, who was the wife of James Taylor, who was jointly indicted with the defendants on trial, but who was not- yet tried. The Attorney General, on behalfof the State, objected to her competency as a witness. This objection was, sustained and her testimony rejected. The jury returned a verdict of $500 against William Moffit; and of $100 against his son James H. Moffit.
    The defendants moved the court to set aside this verdict, but their motion was ovei'ruled and judgment rendered in conformity with the verdict. -'The court sentenced William Moffit to three months imprisonment in the common jail of Lincoln county, and James H. Moffit to six weeks imprisonment in the same.
    From.this judgment the defendants appealed in error to the supreme court.
    
      James Campbell, for defendants in error.
    
      Attorney General, for the State.
   Reese, J.

delivered the opinion of the court.

The plaintiff in error and one James H. Moffit, and one James Taylor, were jointly indicted for an assault and battery. When the case came on to be tried, the plaintiff in error made an affidavit, that the wife of J. Taylor, the defendant, who had intermarried with him .since the finding of the bill, could give testimony material for his defence, and, therefore, moved the court that the Moffit’s should be separately tried from the said J. Taylor, the husband of the proposed witness, which was ordered accordingly, and the two Moffits first put upon their trial. The wife of Taylor was then offered as a witness, but was on argument rejected by the court, on the ground that she was the wife of a party, not yet tried, who was jointly indicted with those on trial. And whether the witness was correctly rejected, is the question before the court. It is true that husband and wife are in general incompetent witnesses, either for or against each other, on the ground, partly of policy and partly of identity of interest. It is well settled moreover, that when the husband is on trial with others, jointly indicted with him, the wife is not a competent witness to testify on behalf of those othei's, although her testimony may not relate to her husband; because, being brought in conflict with witnesses who testify as to the guilt of all, the tendency of her testimony, under such circumstances, Might confer some benefit on her husband,'the jury being probably unable to weigh the testimony properly, according to its just bearing on the different defendants. It has also been determined, that the wife of a defendant, jointly indicted with others for a riot, conspiracy, or other offence, in which the'guilty, participation of some ..specified number is made necessary by law, is not competent to testify on behalf of the other defendants, althpugh tried separately from her husband, because' the consequence of their acquittal in such case," might be to exonerate her husband from the charge. See 1 Yer.Rep. 431. But the case beforé üs ,is neither of these. In this case, the husband has no direct interest in the event of the .suit, nor can the judgment of conviction or -acquittal of Moffit, be evidence on his trial. He might, therefore,himself, on the separate trial, have been a witness, but for the téchnical rule mentioned in the case of the State vs. Moody, 1 Yer. 432, “that defendants jointly sued or indicted, cannot be witnesses for or against each other, until discharged from the suit or prosecution, or at least, until after conviction.” But the wife is not a” parly, and, therefore, not within the scope of that technical rulé., She is not to be excluded on the ground of identity of interest with the husband, because, as has been said, he has no interest. Her admission as a witness, does not violate the principles of public policy, founded on the relation of husband and wife, becáuse she is not offered as a witness for or against him. Upon principle, .therefore, the wife may be a witness under the circumstances, and iirthe case stated in the record. But there is no want of express authority upon the very point. In the case of The Commonwealth vs. Eastland, 1 Mass. Rep. 15, it is decided to be a sufficient ground for a separate trial, that the wife of one defendant is a material witness of the other. And in the case of The Stale vs. John Anthony, Sr., a new trial was granted by the Constitutional court to the defendant, because the wife of the other defendant, jointly indicted for murder, but not on trial with him, had been offered as á witness on his behalf, and rejected by the judge presiding at the trial. 1 McChord’s Rep. 286. The judgment, therefore, in the casé before us, will be reversed upon the ground stated,'and a new trial be granted.  