
    The State vs. Wm. Mooney, and others.
    Sparta,
    September, 1830.
    One of several persons, jointly indicted for a riot, although he has pleaded and defended separately, is not a competent witness for his co-defendants.
    Where defendants are jointly indicted for misdemeanors they cannot be witnesses for or against each other, until discharged from the prosecution or convicted.
   Opinion of the court delivered by

Judge Catron.

The defendants were jointly indicted for a riot. Wm. Mooney Sr. pleaded and defended separately. The other three defendants pleaded and went to trial jointly. On the trial of the three, Wm. Mooney was offered by them as a witness, but rejected by the court as incompetent to depose, — he not having been tried.

If the three defendants had been acquitted upon the evidence of Wm. Mooney, he would then have stood alone in the indictment, and ought to have been discharged, because one persomcould not be guilty of a riot. The case of the State vs. Pugh, 1 Hayw. Rep. 55, is relied upon as authority to sustain the position, that Wm. Mooney could have been convicted and punished after the other three were acquitted. In the case cited, one of the rioters had died before the trial, and one had not been taken. The doubt was, whether Pugh, who stood convicted, could be punished before the conviction of the others. If so, the death of one would have defeated the prosecution.— The court declared Pugh estopped by the verdict, to say he was not guilty in manner and form as charged, — the whole indictment having been found true.

Rogers, (Attorney General) for the State.

Samuel Turney, for defendants.

Here, if Wm. Mooney, by his evidence, had discharged the other three defendants, he would have produced his own discharge, because the verdict would have concluded the state in Wm. Mooney’s own case; therefore, he was directly interested in the acquittal of his co-defendants. For this reason he was incompetent.

He was equally incompetent by a technical rule. 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. Peake’s ev. 152. The people vs. Bill, 10 Johns. Rep. 95. Bull. N. P. 285. Philip’s ev. 62.

We affirm the judgments, and order the defendants to be imprisoned from, this day, and until the fine and costs are paid, or they are legally discharged as insolvent debtors, after the term of imprisonment as punishment has-expired.  