Baker v. United States

• Citation: 1 Minn. 207
• Parties: WYMAN BAKER vs. THE UNITED STATES.
• Decision Date: 01 January 1852
• Court: Minnesota Supreme Court

1 Minn. 207

WYMAN BAKER vs. THE UNITED STATES.

Supreme Court of Minnesota.

Error to district court, Ramsey county.

Assignment of errors:

1. The district court erred in affirming the judgment of Orlando Simons, the justice below, for the reason that said justice erred in excluding the witness, Thomas Baker.

2. The district court erred in rendering judgment against Joseph M. Marshall, the surety on the recognizance for writ of certiorari.

3. The district court erred in rendering judgment for,

or affirming judgment below with ten dollars costs to the United States.

H. L. Moss, for plaintiff in error.

Rice, Hollinshead & Becker, for defendants in error.

SHERBURNE, J.

Wyman Baker, the plaintiff in error, and one Thomas Baker, were defendants in a criminal prosecution for assault and battery. Wyman Baker was first tried, and upon his trial offered the said Thomas Baker, his co-defendant, as a witness in his behalf. This witness was objected to by the counsel for the government, and the objection was sustained by the magistrate before whom the cause was tried, and the witness excluded.

The exclusion of this witness is alleged to be error, and the counsel for the plaintiff in error, in order to sustain his position, relies upon § 93, on p. 20, of the amendments to the Revised Statutes, allowing parties and others to be witnesses, in derogation of the common law. But that section of the statute contains the following clause:

"But no defendant in a criminal action or proceeding shall be a witness therein for himself." It is a well settled rule of evidence at common law, that parties to the record are inadmissible as witnesses, either in civil actions or criminal prosecutions; they are neither permitted to testify for, nor obliged to testify against, each other. And the rule is the same, whether the defendants are tried together or separately. Commonwealth v. Marsh, 10 Pick. R. 57; The People of New York v. Bill, 10 Johns. R. [95]. It should not be presumed that the legislature intended to change this salutary rule, unless such intention clearly appears from the language used. In other words, a law authorizing such a departure from well established rules, and especially those commending themselves to general favor, should be strictly construed. 1 Kent's Com. 464; Commonwealth v. Knapp, 9 Pick. R. 514. As the common law rule now stands, we do not find, as before stated, that any distinction is made as to the admissibility of parties to the record as witnesses between the case of a trial of all the defendants at the same time, and that of separate trials; nor, indeed, does there seem to be any reason for such distinction. If Wyman and Thomas Baker had been tried together, Wyman might have offered Thomas as a witness, with the same reason that he offered him upon a separate trial. They were both defendants in the same case, and as to the effect of their testimony for each other, it was immaterial whether they were tried separately or at the same time. The rule for admitting parties defendant as witnesses, after discharge, or judgment against them, is based entirely upon different grounds, and even this is sometimes denied by high authority. Rex v. Lafone et al., 5 Esp. R. 155. The later authorities, however, are otherwise. We are of the opinion that the statute was intended to mean nothing more than that a defendant in a criminal action should not be permitted to testify in defense of his own cause; and such a provision is in affirmance, and not in derogation, of the common law rule which is founded, not merely on the consideration of interest, but — partly, at least — in a principle of policy for the prevention of perjury. 3 Stark. Ev. 1062. It is...