I dissent from the proposition that, when two or more codefendants are being jointly tried, and one of them "at his own request" takes the witness stand, his testimony cannot be considered by the jury as evidence either for or against the other defendant or defendants. That would be the most unjust and unreasonable doctrine ever announced. There is no authority for it in this state or in any other jurisdiction where the Legislature has removed the common-law disability by declaring that a defendant on trial "shall, at his own request but not otherwise, be deemed a competent witness." That is the precise language of the Act 157 of 1916, p. 379, which is taken literally from the federal statute on the subject, the Act of Congress of March 16, 1878, 20 Stat. at L. 30, c. 37, 28 USCA § 632.
Every text-writer on the subject and every court of justice in the civilized world maintains that, where there is a statute declaring that a person on trial, charged with a crime, is a competent witness in the case, his testimony, if he sees fit to testify, is legal evidence for or against his codefendant also on trial. The Supreme Court of the United States so held in Benson v. United States, 146 U.S. 325, 13 S. Ct. 60, 36 L. Ed. 991, and has never deviated from the ruling, viz.:
"But the last fifty years have wrought a great change in these respects, and today the tendency is to enlarge the domain of competency and to submit to the jury for their consideration as to the credibility of the witness those matters which heretofore were ruled sufficient to justify his exclusion. This change has been wrought partially by legislation and partially by judicial construction. By Congress, in July, 1864 (Rev. Stat. § 858 [28 USCA § 631]), it was enacted that `in the courts of the United States no witness shall be excluded in any action on account of color, or in any civil action because he is a party to or interested in the issue tried,' with a proviso *Page 218 as to actions by and against executors, etc. And on March 16, 1878, it also passed an act permitting the defendant in criminal cases to testify at his own request. 20 Stat. 30, c. 37. Under that statute, if there had been no severance and the two defendants had been tried jointly, either would have been a competent witness for the defendants, and though the testimony of the one bore against the other, it would none the less be competent. Commonwealth v. Brown, 130 Mass. 279. The statute in terms places no limitation on the scope of the testimony, for its language is `the person so charged shall at his own request, but not otherwise, be a competent witness.' His competency being thus established, the limits of examination are those which apply to all other witnesses. Legislation of similar import prevails in most of the states."
Prof. Wigmore in his master work on Evidence, vol. 1, § 580, p. 714, says:
"(1) Separate trial. The plain object of the statute was to remove the disqualification of the accused as a party; his common-law incompetency as co-indictee was due solely to his being a party in interest; therefore any and every such disqualification has disappeared. This is impregnable logic if the premises be conceded:" (Here the author cites and quotes from a long line of decisions from almost every state in the Union).
"This is plain enough, when the witness is called for theprosecution, because at least that much was already conceded at common law; but the reasoning applies equally to the witness called for his co-defendant, so that the common-law rule (as it had been applied by most Courts) must be deemed changed in that respect, by implication of the statute.
"(2) Same trial. The reasoning has precisely the same effect in its application to the case of the disqualification (unanimously conceded) at common law, namely, testimony of a co-defendant being tried at the same time. The statute has removed all his incapacity as a *Page 219 party, both in its direct effect upon himself and in its indirect effect upon others."
Wharton's Criminal Evidence (10th Ed.) is also authority for the proposition, viz.:
"Par. 428. Statutory removal of accused's disqualification as a witness. — With the exception of Georgia, all the states have passed statutes regulating the conditions under which the accused becomes competent as a witness. Such statutes provide, generally, that the accused may, at his own election and in his own behalf, become a witness, the purpose being to give him the fullest opportunity to testify, but permitting no inference whatever to be drawn from his silence. The statutes confer a privilege, but do not impose an obligation; hence, while he is rendered competent, he cannot be compelled, in any criminal case, to become a witness against himself."
"Par. 438. Otherwise as to co-indictees. — As we have shown, co-indictees, under the statutes, may be witnesses for each other, and even where the statute does not render the co-indictee competent in terms, yet the sound rule is that where the statute removes the disqualification of the accused, his co-indictee can be called for him, and there is no substantive reason why such co-indictee may not be called against him. At common law co-indictees were disqualified."
The majority opinion in the present case seems to be that this court has already gone contrary to the rule which is otherwise universal. The decisions cited to sustain that belief, in the majority opinion in this case, are State v. Angel, 52 La. Ann. 486, 27 So. 215, State v. Smith, 156 La. 685, 101 So. 22, and State v. Dreher, 166 La. 924, 118 So. 85.
None of the cases cited sustains the proposition that a defendant on trial cannot testify for or against a co-defendant on trial. What was said on the subject in State v. Angel was mere obiter dictum, because the author of the opinion called attention to the fact, as the *Page 220 report of the case shows, that the defendant who offered to testify, Numa Angel, was permitted to testify to all of the facts within his knowledge, "leaving to the jury the duty of applying the evidence thus given to the determination of the whole case." What was said on the subject in State v. Smith was also mere obiter dictum, because, as the author of the opinion said at the outset of his opinion, and as shown by the report of the case, the verdict and sentence had to be affirmed because there was no bill of exception taken, no assignment of error, and no error apparent on the face of the record. In State v. Dreher, there was not only no bill of exceptions taken to the judge's instruction to the jury that they could not consider the testimony of one of the defendants as evidence for or against the others, but the defendants actually requested the judge to so instruct the jury. This court therefore did not pass judgment on the correctness or incorrectness of the judge's instruction to the jury, and could not possibly have passed judgment upon it, as appears plainly from the report of the case, page 974 of the 166th La. Rep. and page 103 of the 118th Southern Reporter.
But, if we accept the doctrine of the Angel Case and of the Smith Case as being sound, the doctrine is that, when two or more defendants are jointly indicted, they must ask for a severance in order to be allowed to testify for or against each other. The only reason given in the Angel Case and in the Smith Case for saying that two or more defendants who are being jointly tried cannot testify for or against each other was that their remedy, to avoid being disqualified as witnesses for or against each other, was to ask for a severance. In the Angel Case, the reason for the ruling was said to be "They might have asked a severance, and been separately tried," and in the Smith Case the reason for the ruling was said to be "The remedy is to ask for a severance." If we say now that two or more *Page 221 defendants who are jointly indicted are not entitled to the remedy of asking for a severance, in order to be allowed to testify for or against each other, we are saying that there was no reason or basis whatever for the statement, or obiter dictum, in the Angel Case and in the Smith Case, that two or more defendants, when jointly tried, cannot testify for or against each other.
And yet, strange to say, in the majority opinion rendered in this case, the Angel Case and the Smith Case are the only cases cited — besides the Dreher Case, where there was no such question before the court — in support of the doctrine that the testimony of two or more codefendants cannot be considered as evidence for or against each other, if they are tried jointly.
It is said in the majority opinion in this case: "Not one of the cases cited in the Angel Case holds that defendants on joint trial are entitled to a severance upon the mere asking for it." Of course, the decisions cited in the Angel Case do not support the ruling that codefendants cannot testify for or against each other without availing themselves of the remedy of asking for a severance. That is another reason why the decision in the Angel Case has nothing to rest upon. The cases that were cited in the Angel Case, as authority for the ruling, were all rendered at a time when, in this state, a defendant in a criminal prosecution was not a competent witness in his own behalf; and those decisions would not have been authority for the ruling in the Angel Case, even if they had been rendered subsequent to the statute of 1886, because, in every one of the cases cited, the testimony of the codefendant, which was held to be inadmissible for or against another defendant, was a confession made out of court, when the party confessing was not under oath, or subject to cross-examination. Such a confession, of course, is not admissible in evidence except against the party making the confession. *Page 222
It is said in the majority opinion, in this case, "The announcements in the Smith Case that `The remedy is to ask for a severance,' and in the Angel Case that `These parties * * * might have asked a severance, and been separately tried,' are merely loose and inaccurate expressions of the court," etc. On the contrary, those expressions were the only reason given for the statement, which was merely obiter dictum in both cases, that the testimony of a defendant cannot be considered as evidence for or against his codefendant.
One of the most astonishing declarations in the majority opinion in this case is this: "Even in cases where a severance has not been asked for, or has been refused, each codefendant is protected against the adverse testimony of his codefendant, under the charge of the court to the jury not to consider such testimony." How does that protect a defendant who is denied the benefit of the testimony of his codefendant, when such testimony is favorable to him?
The case of State v. Sims et al., 106 La. 453, 31 So. 71, is cited in the majority opinion in this case, with the statement: "This was an appropriate case for the granting of a severance, if it had been seasonably requested." Of course, it was an appropriate case for a severance. The confession, which was made by one of the defendants, and was held to be inadmissible against the other, was made out of court, when the witness was not under oath, or subject to cross-examination. That is one of the cases that has been cited in support of the monstrous proposition that the testimony of a defendant on trial cannot be considered as evidence for or against his codefendant.
The author of the majority opinion in this case, on the sixth page (121 So. 747),1 says that it would greatly hamper the administration of justice if the courts were compelled to *Page 223 grant a severance, and a separate trial for each defendant, in every case where one of several codefendants desires to testify for or against his codefendant or codefendants. That is why I insist that there is no necessity for granting a severance in order that a defendant on trial may exercise his right to testify for or against his codefendant or codefendants. There is no authority anywhere for such a proceeding, except the statement in the Angel Case and in the Smith Case that one of several codefendants could not testify for or against another without first obtaining a severance, and that the remedy in such a case is to ask for a severance. What the majority opinion in this case does is to abolish the unfounded reason for the declaration in the Angel Case and in the Smith Case that the testimony of one codefendant cannot be considered as evidence for or against another, but retain the unfounded declaration itself, as being a sound statement of the law, notwithstanding it was mere obiter dictum in each case, and has now no reason whatever for its existence.
On the ninth page of the majority opinion in this case (121 So. 748),2 the author quotes the following from the Angel Case:
"While in this case the co-defendant was willing to go upon the stand as a witness for the other, it is easy to foresee that, were a different ruling sustained than as above, it would sanction a practice that would likely result oftentimes in one on trial with another being called as a witness against his will,and greatly to his prejudice. And, though he might exercise his constitutional right, and refuse to give answers that might criminate himself, that itself would be forcing him into a situation fraught with embarrassment, if not of jeopardy, to his case." (The italics are mine.)
When the author of the opinion in the Angel Case wrote that statement, he simply overlooked *Page 224 the fact that the statute of Louisiana, and the federal statute, and the statute of every state, which makes the defendant in a criminal prosecution a competent witness, declares that the defendant "shall, at his own request but not otherwise, be deemed a competent witness." Where, then, is the danger of "one on trial with another being called as a witness against his will and greatly to his prejudice"?
Aside from the obiter dictum in the Angel Case and in the Smith Case, there is no authority whatever for the monstrous doctrine that the testimony given by a defendant on trial cannot be considered as evidence for or against his codefendant. It is conceded in the majority opinion in this case that the only basis for the pronouncement of the doctrine in the Angel Case and in the Smith Case was unsound; that is to say, that the remedy of the codefendants was to ask for a severance.
The ruling in the present case is the most unjust and hurtful ruling that could well be imagined. It means that the district attorney, in any case, has the right to deprive the defendant of the benefit of the testimony of any witness, by including him in the bill of information or indictment, and trying him at the same time. According to this new doctrine, if the district attorney desires to use one of the several defendants as a witness against his codefendant or codefendants, all that the district attorney has to do is to try the codefendant separately. But, no matter how many defendants are jointly indicted, they are not entitled to the benefit of the testimony of each other; each is entitled to the benefit only of his own testimony.
That doctrine, which was referred to only incidentally in the Dreher Case, received such general condemnation that the Criminal Code Commission inserted in the Code of Criminal Procedure article 474, viz.:
"When several persons are on trial at the same time, under the same indictment, each *Page 225 may be a witness on his own behalf or on behalf of his co-defendants."
It is true that the Code of Criminal Procedure was not adopted in time for the defendants in this case to be protected by article 474; but the point which I make is that that article was inserted only because of the terrible injustice which would have resulted if this court should have adopted, as the law, the expressions which were made, unnecessarily, in the Angel Case and in the Smith Case, and which were referred to incidentally in the Dreher Case, to the effect that the testimony given by a defendant on trial cannot be considered as evidence for or against a codefendant also on trial. The Criminal Code Commission was not created for the purpose of protecting defendants against injustice in criminal prosecutions. It was created for the avowed purpose of doing away with all of those purely technical rules which protected criminals. And yet this Criminal Code Commission deemed the obiter dictum, which was expressed in the Angel Case and in the Smith Case, and which was referred to only incidentally in the Dreher Case, as being such an unfair doctrine, that the commission took occasion to forbid this court to adopt it. It is to be observed that the provisions of article474 of the Code of Criminal Procedure were not in the original draft of the proposed Code, as printed and distributed by the commission.
If any one reading this opinion doubts my statement that the expression in the Angel Case and in the Smith Case, which is relied upon as a precedent for the ruling in this case, was mere obiter dictum, I beg of him to read those opinions; and, if any one reading this opinion doubts my statement that the question which is presented in this case was not presented at all in the Dreher Case, I trust that he will read that opinion.
My great difficulty is that I cannot convince a majority of the members of the court that the Angel Case, or the Smith Case, or the *Page 226 Dreher Case, did not establish a precedent, compelling us to perpetuate a doctrine which is manifestly unfair and unreasonable — that the testimony of a defendant on trial in a criminal prosecution cannot be considered as evidence either for or against a codefendant also on trial.
1 Ante, p. 211.
2 Ante, p. 214.