
    Commonwealth vs. Charles Smith.
    When two persons are jointly indicted for house breaking, and one of them pleads guilty, he is a competent witness, before sentence, on the trial of the other.
    Charles Smith and Hiram Underwood were jointly indicted for breaking and entering a dwelling-house, in the day time, with intent to commit larceny therein. Underwood pleaded guilty, and Smith pleaded not guilty. At the trial of Smith, in the municipal court, before Wells, C. J. the prosecuting attorney, after the evidence for the defence was closed, offered Underwood, who had not been sentenced nor discharged, as a witness for the Commonwealth. The counsel of Smith objected to the admission of Underwood’s testimony, on the ground that he was still a party to the record, and therefore incompetent to testify. This objection was overruled, and Underwood’s testimony was admitted. The jury found Smith guilty, and he alleged exceptions.
    
      H. C. Hutchins, for the defendant,
    cited Commonwealth v. Marsh, 10 Pick. 57. The People v. Bill, 10 Johns. 95. Bull v. Strong, 8 Met. 8. Regina v. Lyons, 9 Car. & P. 555. Hawkesworth v. Showler, 12 Mees. & Welsb. 45. The King v. Ryan, Jebb’s Cr. Cas. 5. 1 Greenl. on Ev. $ 363. 3 Phil. Ev. (4th Amer. ed.) 1504, 1510, 1511. Rex v. Lafone, 5 Esp. R. 154.
    
      S. D. Parker, for the Commonwealth,
    cited Bradlee v. Neal, 16 Pick. 501. Chaffee v. Jones, 19 Pick. 260. Butcher v. Forman, 6 Hill, 583. Aflalo v. Fourdrinier, 6 Bing. 306. Regina v. George, Car. & Marshm. 111.
   Shaw, C. J.

The question in the present case is, whether a co-defendant, who has pleaded guilty, but has not been sentenced, can be called as a witness for the prosecution.

It has been held, that a co-defendant, who has not been tried, cannot be called as a witness for one put on trial separately. Commonwealth v. Marsh, 10 Pick. 57. So it has been held, in New York, that a party in the same indictment cannot be a witness for his co-defendant, upon his trial, until he has been acquitted or convicted. The People v. Bill, 10 Johns. 95. But the reason does not apply to one who, by conviction on his own confession, has ceased to be a party to the issue to be tried. Rex v. Fletcher, 1 Stra. 633. And in a late case, where a co-defendant had pleaded guilty to a charge of house breaking, and was called as a witness, before sentence, he was admitted. Regina v. George, Car. & Marshm. 111. See also 1 Phil. &. Amos on Ev. 29, 70.

Exceptions overruled.  