It appears to be a technical rule of evidence, and one well settled, that a party in the same suit or indictment, cannot be a witness for his co-defendant, until he has been first acquitted, or, at least, convicted. Whether the defendants be tried jointly, or separately, does not vary the rule. It is his being a party to the record that renders him incompetent, and the practice is, when nothing appears against one of the defendants, for the court to direct his immediate acquittal, so that the other defendant may use him as a witness. (1 Hale’s P. C. 306. Peake’s Ev. 100. note. 6 Term Rep. 623.) In the case of Rex v. Fletcher, (Stra. 633.) where two were indicted for an assault, and one submitted, and was fined, and paid it, the chief justice allowed him to be a witness, “ the matter then being at an end, as to him.” But in the late case of Rex v. Lafone and others, (5 Esp. N. P. 155.) Lord Ellenborough would not allow a co-defendant, on a joint indictment for a misdemeanor, to be a witness for the other, though he had let judgment go by default, for he said that one defendant, in that case, might always protect the other, and he had never known that evidence offered.
The witness in the present case was, therefore, legally excluded.