A similar decision was made in the following case, argued at September term 1370 for Hampden.

Commonwealth vs. Thomas Deneht.

Indictment returned into the superior court for Hampden at December term 1869, charging the defendant with breaking and entering Loring Sackett’s shop in Holyoke with intent to commit larceny therein, and then and there stealing ten pairs of boots. Trial and verdict of guilty, in the superior court, before Rockwell, J., who allowed exceptions in substance as follows:

The defendant filed a plea “ that the Commonwealth ought to be barred from having and maintaining this indictment; because, he says, that in a trial, before a trial justice in said county, of Patrick Bowler, for the same offence charged against him therein, the government called him as a witness, and caused him to be duly sworn as a witness in said cause, and at the request of the Commonwealth, then and there as such witness, before said trial justice, he did testify that he did commit the offence charged against him, and testified fully and entirely his whole knowledge of the circumstances of the commission of said offence and his participation therein, and made full and complete disclosures and proof of the commission of said offence and his crime ; all of which he is ready to verify.” This plea was overruled.

“ The defendant then pleaded not guilty, and was tried. He proved, in his defence, that, upon a trial of Patrick Bowler, before a trial justice for said county, at Holyoke, for the same burglary and offence charged in this indictment, he was called by the Commonwealth and sworn as a witness; that he then did testify that he, the said Denehy, broke and entered the shop of Sackett, as charged in this indictment, and stole the property therein charged, and took it to where Bowler was, and Bowler refused to take the stolen property ; that he, the defendant, testified then and there to the circumstances of said burglary, and disclosed the parties engaged in it with him ; and that Bowler was held to answer the said charge, but was not indicted by the grand jury. And thereupon the defendant asked the court to rule that, if he did so testify, at the request of the Commonwealth, as the witness of the Commonwealth, and made a -full and complete disclosure of all the facts in his knowledge concerning the burglary, the jury could not convict; but the court ruled otherwise, and he excepted.”

G. M. Stearns, (M. P. Knowlton with him,) for the defendant. 1. In this case the Commonwealth called the defendant as a witness, and thereby impliedly promised him the protection of the government. Commonwealth v. Knapp 10 Pick. 477, 493. It cannot be objected that he was called by the trial justice *425only, and not by a mere prosecuting officer. The trial justice acts for the Commonwealth, and no other person is invested with authority to call witnesses in his court for the government. In Rex v. Rudd, Cowp. 331, 334, the party was called as a witness by a police magistrate of London. In England, the defendant could not plead this matter in bar, nor set it up in defence, because under ordinary circumstances he would have there only an equitable right to a recommendation for pardon. 3 Russell on Crimes, (4th ed.) 597. But if pardon was promised in the Gazette, he would have a right to pardon, although subject to sentence. Rex v. Rudd, Cowp. 331, 334. In this country, if convicted before he is called as a witness, he is entitled as of right to a pardon. People v. Whipple, 9 Cowen, 707, 715. If not tried, he is entitled to a discharge. United States v. Lee, 4 McLean, 103. Commonwealth v. Knapp, 10 Pick. 477, 493. In England, he is entitled to nothing until after sentence. In Massachusetts, he is entitled not to be prosecuted. Commonwealth v. Knapp, 10 Pick. 493. Inasmuch, therefore, as he is entitled to protection from prosecution, it follows he may plead the matter in bar or set it up in defence. Such is the law in Scotland. Alison Pract. Crim. Law of Scotland, 453.

C. AUen, Attorney General, for the Commonwealth.

By the Court. The case cannot be distinguished from Commonwealth v. Brown, ante, 422. Exceptions overrule i