Steamboat Prairie Rose v. Cross , 34 Mo. 109 ( 1863 )

Bates, Judge,

delivered the opinion of the court.

1. It seems to be settled, that where there are several defendants, and some of them desire one as a witness, that the court may direct the jury to find a verdict as to that one if there be no evidence against him; but if there be any evidence against him, the court has no power to submit his case to the jury separately in order that he may be a witness if acquitted. (Hood v. Mathis, 21 Mo. 308; Campbell & Maison v. Hood, 6 Mo. 211.)

In this case there was some evidence against Brown, and therefore the court properly overruled the motion to submit the issue as to him to the jury.

2. There was no error in the refusal of the court to require the witness Jennings to state what he thought and believed. They were irrelevant to the issues.

3. The declarations of defendant Brown, that he was not a partner, were inadmissible in his favor. It does not appear that the plaintiff had given evidence of declarations made by Brown.

4. The articles of copartnership between defendants, Cross, and Mary and Elizabeth Brown, were not proved to have been executed by Mary and Elizabeth Brown, and therefore (without reference to other objections) they were properly rejected as evidence.

Judgment affirmed.

Judges Bay and Dry den concur.