ON MOTION EOS A REHEARING.
GroesbeCK, Chief Justioe.The Attorney General has filed a brief on a motion for a rehearing in which he states that: “At common law it is a well understood doctrine that a co-defendant can not be used as a witness for the prisoner on trial, but might be used as a witness for the State;” and as the"common law was adopted by our statute, the same is still in force, and can only be repealed by direct legislative enactment, and hence the witness, John McGinnis, held to be a competent witness for the plaintiff in error by this court, was incompetent to testify for his co-defendant on the separate trial of the latter, jointly accused with him. As to the competency of the witness under the *125common law, the decisions are not harmonious. They are cited in Kapalje on Law of Witnesses, Section 43, and referred to in the following language: “The rule is pretty well settled at the common law that where two or more persons were separately indicted for an offense in which all were implicated, either of them could be a witness for either of the others, on his separate trial; and he might testify for the prosecution in such a case. In the case of the separate trial of two or more persons jointly indicted, the authorities are not harmonious, some of them holding one of them competent for the prosecution; others permitting him to testify for his co-defendant, and still others denying a defendant so situated the right to testify at all upon the separate trial of one united with him in the same indictment, unless he had been previously tried and acquitted.” From this review, it is not clear what the precise rule of the common law would be in the case at bar, but the great weight of reasoning is with those courts that hold that the co-defendant may testify for the defendant on trial even when jointly indicted with him, as the separate trials have the same effect as if the parties were separately indicted. The early text writers on evidence, including Greenleaf and Starlde, incline to this position. This view is strengthened by the statute permitting a defendant to testify in his own behalf in a criminal case, as the common law excluding him as a party to the record has been abrogated by statute. If the defendant on trial is a competent witness for himself, why should not one jointly accused with him, but to be tried separately be also competent? He is only technically a party to the record, and his separate trial has the same effect as if he had been separately accused. The motion for a rehearing is denied.