McGinness v. State

• Decision Date: 26 January 1893
• Citation: 31 P. 978,4 Wyo. 115
• Parties: McGINNESS v. STATE
• Court: Wyoming Supreme Court

31 P. 978

4 Wyo. 115

McGINNESS v. STATE

Supreme Court of Wyoming

January 26, 1893

Rehearing Denied February 9, 1893, Reported at: 4 Wyo. 115 at 124.

ERROR to District Court of Converse County. HON. RICHARD H. SCOTT Judge.

The material facts are stated in the opinion. ^[*]

Judgment reversed and cause remanded.

C. C Wright, for plaintiff in error.

A co-defendant is a competent witness for the defense upon the separate trial of one jointly accused with him, especially since the statutory modification of the common law rule affecting the competency of witnesses. (Marshall v. State, 8 Ind. 498; Everett v. State, 6 Ind. 495; Hunt v. State, 10 Ind. 69; People v. Newberry, 20 Cal. 440; People v. Lubra, 5 Cal. 183; Moffet v. State, 2 Humph. U. S. v. Henry, 4 Wash C. C., 223; State v. Georgia, 1 Ga., 617; State v. Nash, 10 Ia. 81; State v. Gigher, 23 Ia. 218; Noland v. State, 19 O., 131; Allen v. State, 10 O. St., 288; Brown v. State, 18 O. St., 496; State v. Barrows, 76 Me. 401; Wright v. Commonwealth, 85 Ky. 124.) It is the duty of the court, independent of any request, to give such instructions as are applicable to the evidence. (4 Tex. App., 574; 3 Tex. App., 18; Robinson v. State, 5 Tex. App., 519; State v. Branard, 25 Ia. 572; State v. Hagan, 38 Ia. 504.) The instructions requested by defendant which correctly state the law and have any basis in the evidence should also be given. (5 Tex. App., 365; State v. Gibson, 10 Ia. 117.)

Charles N. Potter, Attorney General, for defendant in error, argued and contended:

That the common law rule had not been abrogated in this State, and that a co-defendant could not be permitted to testify for the defense.

GROESBECK, CHIEF JUSTICE. CONAWAY and CLARK, JJ., concur.

OPINION

GROESBECK, CHIEF JUSTICE.

The plaintiff in error, William McGinnis, was convicted of the crime of grand larceny in the district court of the First Judicial District, sitting for the County of Converse, on the 30th day of October, 1891, and thereafter was sentenced by that court to be imprisoned in the penitentiary at Laramie, Wyoming, for the term of four years, where he is now serving his term. Proceedings in error instituted in this court seek a reversal of the judgment below on various grounds, which assail the rulings of the court in the admission of evidence offered by the prosecution over the objection of the plaintiff in error, the refusal to give instructions asked for by the defense, the giving of instructions over the objection of the defense and the insufficiency of the evidence.

Error is also charged in the refusal of the trial court to permit one John McGinnis, the brother of the plaintiff in error, to testify on behalf of the latter. He was jointly informed against with his brother in the same information, and on application, the trials were severed. Plaintiff in error was first tried, and during the course of the trial, John was called and sworn as a witness in his behalf. He was interrogated by counsel for William, gave his name and residence, and further testified that he was a defendant jointly indicted, or rather, informed against, with said William. At this point the prosecuting attorney objected to his further testimony on the ground of his incompetency as a co-defendant, and the court said: "They (evidently referring to John and William McGinnis) cannot be made witnesses for each other, but can testify for the State." The witness was then excluded over the objection of the plaintiff in error, and an exception was taken to this ruling. In our judgment, it becomes unnecessary to review the other grounds of error assigned, as the decision of the question as to the competency of John McGinnis as a witness for his co-defendant on the separate trial of the latter, will dispose of the case here.

1. Our statute provides that the defendant in all criminal cases in all courts may be sworn and examined as a witness if he so elect, but shall not be required to testify in any case. Rev Stat. Wyo. Sec. 3288. It is clear, then, that the common law rule making defendants incompetent to testify in their own behalf in a criminal cause, has been abrogated by statute. It is equally apparent that if the defendants, John McGinnis and William McGinnis, had been tried together that each could have testified. The cases parallel to the one at bar seem to be in conflict. The weight of authority is, however, clearly in favor of permitting the evidence of a co-defendant to be used for the prosecution on the separate trial of the other defendant, except where he has been convicted of the offense and sentence has been pronounced, but the case before us is one of more difficulty although it has frequently been before the courts. Mr. Greenleaf states the rule to be as follows: "The admission of accomplices, as witnesses for the government, is justified by the necessity of the case, it being often impossible to bring the offenders to justice without them. The usual course is to leave out of the indictment those who are to be called as witnesses; but it makes no difference as to the admissibility of an accomplice, whether he is indicted or not, if he has not been put on trial at the same time with his companions in crime. He is also a competent witness in their favor; and if he is put on trial at the same time with them, and there is only very slight evidence, if any at all, against him, the court may, as we have already seen, and generally will, forthwith direct a separate verdict as to him, and, upon his acquittal, will admit him as a witness for the others. If he is convicted, and the punishment is by fine only, he will be admitted for the others, if he has paid his fine." Greenleaf on Evidence, Sec. 379. A review of the authorities on this subject will be found in the opinion of the court delivered by Mr. Justice Brewer in the recent case of Benson (impleaded with Rautzahn) v. The United States, decided at the October, 1892, term of the Supreme Court of the United States. A co-defendant jointly indicted for murder with the defendant on trial was permitted to testify for the prosecution in the trial court after a severance had been ordered. This was held not to be error, and although the court could have rested there without going further, it took occasion to review the cognate question, as to the competency of a co-defendant, jointly indicted but to be tried separately, to testify for the defendant on trial as well as against him. Under the act of Congress permitting the defendant in criminal cases to testify at his own request, it was held that his competency being thus established, the limits of the examination are those which apply to all other witnesses. The opinion says: "Legislation of similar import prevails in most of the States. The spirit of this legislation has controlled the decisions of the courts, and steadily, one by one, the mere technical barriers which excluded witnesses from the stand have been removed, till it is now generally, though not perhaps universally, true that no one is excluded therefrom unless the lips of the adverse party are closed by death or unless some one of those peculiarly confidential relations like that of husband and wife, forbids the breaking of silence." The common law rule excluding parties in interest or to the record from the witness stand is no longer of efficacy where the statute permits a defendant to testify. To exclude a co-defendant from testifying when he is not on trial, for the defendant on trial, in a criminal case, is to keep alive a rule, if ever in force in such cases, when the reason for the rule is gone. The learned justice in the Benson case, supra, says further: "If interest and being a party to the record do not exclude a defendant on trial from the witness stand, upon what reasoning can a co-defendant, not on trial, be adjudged incompetent? The conviction or acquittal of the former does not determine the guilt or innocence of the latter, and the judgment for or against the former will be no evidence on the subsequent trial of the latter. Indeed, so far as actual legal interest is concerned, it is a matter of no moment to the latter. While the co-defendant not on trial is a party to the record, yet he is only technically so. Confessedly, if separately indicted, he would be a competent witness for the government; but a separate trial under a joint indictment makes in fact as independent a proceeding as a trial on a separate indictment." Adopting the rule laid down by Mr. Greenleaf, supra, the witness, John McGinnis, would have been competent; adopting the views of some of the courts, he would not have been. The reason for the rule, which we can not concede to be the true one, by these courts, appears to be that parties to the record were incompetent witnesses on account of their interest and the great temptations for perjury, particularly in criminal cases where the life or liberty of the witness was hanging in the balance. The reasons for the statute permitting a defendant to testify in his own behalf are obvious. They are that the jury will take into consideration the temptations and influences that might sway the defendant and weigh his testimony in the light of his position and surroundings, as they would certainly that of any witness whose interest in the result of the trial is apparent. Another reason for the rule laid down by the courts excluding co-defendants from testifying for those jointly accused with them, on the separate trial of any defendant was the distrust of jurors and the danger of ignorant jurors being influenced in their judgment by the testimony of such witnesses. The more general diffusion of knowledge among the masses of the people during the last half century and the careful legislation adopted for the selection of...