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At Knoxville:  September Term, 1858

WITNESS. Criminal law. Practice. Where two or more are jointly indicted, and separately tried, it seems that, after trial of one of the parties, and before judgment upon a verdict against him, he may be examined as a witness on behalf of his co-defendants. But, in all such cases, it is the better practice for the Court to render judgment immediately upon the verdict; and in a case where, after verdict against one, the Court would not allow him to be examined for the other, because judgment had not been pronounced upon the verdict, it is held to be an error upon which the latter defendant could claim a new trial.

From Sevier

The plaintiff in error appeals from a judgment of the Circuit Court of Sevier county, Judge Turley presiding, upon a conviction of assault and battery.

J. P. Swann, for the plaintiff in error.

Heiskell and Reese, for the State.

McKinney, J., delivered the opinion of the Court.

The plaintiff in error, and his brother, Andrew Delozier, were jointly indicted for an assault. They severed on trial. Andrew was first tried and found guilty. On the trial of the present defendant, Cromwell Delozier, it was proposed, in his behalf, to introduce Andrew as a witness. The Court refused to allow this to be done, upon the ground that judgment had not been rendered on the verdict against him.

Although there is some conflict of authority upon the point, it is difficult, in principle, to perceive any sound reason why, in a case like the present, one of several defendants jointly indicted, but tried separately, should be held incompetent as a witness, either before or after trial and conviction, for a co-defendant. His relation to the case, or the party on trial, may justly affect his credibility, more or less, according to the circumstances of the particular case. But we are at a loss to see any just ground upon which he should be excluded as positively incompetent. But, be this as it may, it is very clear, that it will not do to place it in the power of the Court, by a mere suspension of judgment upon the verdict, without any sufficient cause, to hold the party convicted, in a condition which disqualifies him to give evidence for a co-defendant, even if the law -were as it seems to have been assumed to be by the Circuit Judge. Upon that hypothesis, the Court ought to have at once rendered judgment, so as to remove the supposed disability.

On this ground alone the judgment must be reversed.



Head, John W., comp. Reports of Cases Argued and Determined in the Supreme Court of Tennessee During the Year 1858 [to 1859], Volume 1. Nashville: J. O. Griffith & Co., Printers (1860), pp. 45-47.

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