Commonwealth v. Smith

Shaw, C. J.

The question in the present case is, whether a co-defendant, who has pleaded guilty, but has not been sentenced, can be called as a witness for the prosecution.

It has been held, that a co-defendant, who has not been tried, cannot be called as a witness for one put on trial separately. Commonwealth v. Marsh, 10 Pick. 57. So it has been held, in New York, that a party in the same indictment cannot be a witness for his co-defendant, upon his trial, until he has been acquitted or convicted. The People v. Bill, 10 Johns. 95. But the reason does not apply to one who, by conviction on his own confession, has ceased to be a party to the issue to be tried. Rex v. Fletcher, 1 Stra. 633. And in a late case, where a co-defendant had pleaded guilty to a charge of house breaking, and was called as a witness, before sentence, he was admitted. Regina v. George, Car. & Marshm. 111. See also 1 Phil. &. Amos on Ev. 29, 70.

Exceptions overruled.