It is said to be an indisputable rule, that *677one or more of several wrong doers, against whom nothing is proved, may be acquitted and examined as a witness for his •co-defendants. Rigdon’s Heirs v. Rigdon’s Devisees, 6 J. J. Marsh. Rep. 53; State v. Shaw, 1 Root’s Rep. 134; Barney v. Cutter, Id. 489; Wakeley v. Hart, 6 Binn. Rep. 316; Brown v. Howard, 14 Johns. Rep. 119; Van Dusen v. Van Slyck, 15 Id. 223; State v. Blennerhassett, Walker’s Rep. (Miss.) 7; Bates v. Conkling, 10 Wend. Rep. 389; Gilmore V. Bowden, 3 Fairf. Rep. 412; Sawyer v. Merrill, 10 Pick. Rep. 18; Wynne v. Anderson, 3 Carr. & P. Rep. 596; Child v. Chamberlain, 6 Id. 213; King v. Baker, 2 Adolp. & E. Rep. 333; Carpenter v. Jones, 1 Mood. & M. Rep. 198; Wright v. Paulin, 1 Ryl. & M. R. 128; Wilmarth v. Mount-ford, et al. 4 Wash. C. C. Rep. 79; Lanning’s Lessee v. Case, et al. Id. 169; Schermerhorn v. Schermerhorn, 1 Wend. R. 119. But where the least evidence is given against o.ne of •several wrong doers who is sued jointly, he cannot be discharged on the trial, for the purpose of being examined as a •witness. The want of evidence against a party, it has been said must be so glaring and obvious, as to afford strong grounds of belief, that he was arbitrarily made a defendant to prevent his co-defendants from availing themselves of his testimony. In Brown v. Brown, utsupra, which was an action of trespass against the captain of a vessel and two others, for an assault and battery on the plaintiff, who was a seaman on board the vessel, it was proved that the two other defendants, who were the mates of the vessel, tied the plaintiff, whom the captain had beaten : It was held, that the evidence against the two defendants was such, that they were not entitled to an acquittal for the purpose of being examined as witnesses for the captain. • The cases cited do not perhaps lay down a less restricted rule than this decision affirms.
The question to be determined is, does the evidence recited in the bill of exceptions, implicate Burns and Simmons in the supposed tort of Mauldin, so that the circuit judge could not with propriety have directed their acquittal for the purpose of making them witnesses for Mauldin. In order to solve this inquiry, it is necessary to examine the facts. First, -then, in respect to Simmons, he was awakened at a late hour •of the night by Mauldin and the constable, went with them *678at their request two miles and a half to point out the plaintiff to the constable — he accordingly awakened Harris, while the latter was sleeping in his own wagon, invited him to the camp fire under the pretence of talking with him, and there introduced him to the constable, who took his hand and executed the warrant. In addition, it may be stated that Simmons was a man of family, and the slave whom the plaintiff had taken into his possession, was, at the time all this occurred, at his (Simmons’s) house. Simmons was present at Mauldin’s house when the plaintiff was carried there, the morning after his arrest. As the constable, with Mauldin and others, was going professedly to the justice of the peace who issued the warrant, they stopped at the house of Simmons, where Mauldin went to bed, saying, either that he was drinking or sick. There the prosecution was compromised, and the plaintiff suffered to go at large, though Simmons does not appear to have had any direct agency in the compromise.
Burns, it seems, was the hirer of the slave from Mauldin, and delivered him to the plaintiff previous to the institution of the proceedings against the latter, and was at Mauldin’s house when Mauldin went for the warrant, and remained there until the next morning. He was in company with Mauldin when the latter had an angry controversy with the plaintiff in respect to the right to the slave on the evening before the arrest. Burns was also at Mauldin’s house when the plaintiff was taken there in the custody of the constable ; and was present at Simmons’s, and an active agent of Maul-din in settling the prosecution against the plaintiff.
The mere recital of the facts is quite sufficient to show that Simmons and Burns were not so wholly disconnected with the matter complained of, as to authorize their discharge and examination as witnesses. Whether they were associated with Mauldin, encouraged, aided, or prompted him to prosecute the plaintiff — the motive of their presence upon the several occasions referred to, and the quo animo with which .they acted were properly referable to the jury; and could not have been determined by the court. In directing, therefore, a verdict of acquittal as to these defendants, the cir*679cuit court erred. The judgment is reversed, and the cause remanded.
Judge Chilton not sitting.