Hurter & Hill v. Buford , 38 Ala. 243 ( 1862 )

STONE, J.

We do not think the circuit court erred in permitting the defendant Savage to testify in favor of his co-defendant, Buford. The plaintiffs had closed their evidence, and, so far as we are informed by the record, there was no testimony against Mr. Savage. The case is directly within the letter of the statute. — Code, § 2288 ; Rabby v. O’Grady, 33 Ala. 255.

The charge excepted to presents a graver question. We do not think that the statute, allowing “ a defendant, against whom there is no testimony, to be a witness for his co-defendant,” contemplates that such defendant shall be, cither actually or constructively, discharged from the suit, before he is allowed to testify. The statute contains no such provision, and we do not feel at liberty to interpolate it. On the contrary, both that and the next succeeding section furnish evidence on their face that, in certain cases, and for 'certain purposes, parties to the record are made competent witnesses. But cases may frequently arise, such as the present one, where a defendant, testifying for his co-defendant, is necessarily compelled to give evidence which may make against himself. This may grow out of the very nature of the transaction, about which the witness testifies. He cannot decline to testify on that account $ for the statute gives his co-defendant a right to his testimony, if, by a failure of proof against him, he be brought within its provisions.

We concede, that difficulties present themselves in tbe construction of this section of the Code; and strong objections may be urged against any rule we may adopté We hold, however, that testimony given by a co-defendant, under section 2288 of the Code, is not to be considered'by tbe jury, either for or against the party testifying, for the ■following reasons: In the first place, the statute limits the admissibility of the evidence to the issue between the plaintiff and the co-defendant, by whom the witness is placed upon the stand, and does not constitute him a general witness in the cause. Moreover, all will readily concede, that a witness, introduced under this section of the Code, does not thereby become a witness for himself. If we hold that any admission, to be gathered from his testimony, may he used by the plaintiff against him, this would lead to the most shocking injustice, unless we allowed such witness to depose to any explanatory or rebutting fact or circumstance within his knowledge. Such explanatory or rebutting evidence would lead to embarrassing and perplexing cross-examination, and re-examination, and, in fact, to all the mischiefs which grow out of the examination of parties as witnesses in their own causes.

The judgment of the circuit court is affirmed.