Young v. Croughton

delivered the opinion of the court.

1. We deem it necessary in this case, to notice one point only ; that is, the competency of Croughton as a witness for Ms co-defendant, when offered by'that defendant. There is *370nothing else in the record requiring our interference. It is a well settled rule of evidence, that one defendant cannot be permitted to testify for his co-defendant touching the matters in controversy. He cannot be called to the witness stand by his co-defendant, nor will he be permitted to testify on his own motion voluntarily. This point was so ruled by this court, in the criminal case of State v. Ward, 15 Mo. Rep. Had the plaintiffs called on the defendant to testify, then he would, under the new code, have been a competent witness. “ A party to an action may be examined as a witness, at the instance of the adverse party, or of any one of several adverse parties, and for that purpose may be subpoenaed or otherwise compelled to attend and testify,” &c. See New Code of Practice, art. 24, §11. But there is nothing in this code authorizing the party to become a witness for himself, or for a co-defendant or co-plaintiff, at his own suggestion.

The rule in cases where you wish to use the evidence of a co-defendant is, to proceed with the trial, and if there be no evidence against the defendant, move, the court to direct the jury to pass on the case, so far as regards the defendant intended to be used as a witness ; after verdict in his favor, he may be a witness.

The court erred in this case, in permitting Croughton to give evidence for his co-defendant, and for this error the judgment below'must''be’reversed and the cause remanded,