acquittal of the other, on the testimony of the convicted, would involve the same inconsistency: and the private mischief of the loss of testimony to one must give way to the 2 general inconvenience of admitting it in such cases.

But in the case of other misdemeanors; an assault and battery, for instance, this inconvenience would not exist; and even though some evidence is given against one of several defendants, yet why not take a verdict in the case of one to let in his testimony for the others? But it does not seem to be the policy of the law to carry the matter far. And it is only in a case where no evidence is given, that the defendant is considered as having a claim of right to have a verdict taken separately in his case.

The plaintiff cannot hinder letting judgment go by default against one, and then he becomes a witness for the co-defendants, even in a case where there is evidence. But this is his act. But he cannot move to have his name struck out of the declaration, there being no evidence against one, for this would be putting it to the court, to say whether there is evidence. But he can move to let the jury pass upon his case separately.

The present Lord Ellenborough in a late case which I do not cite, but which I have looked at to inform myself as to the reason of others; for I do not understand the late act of Assembly as precluding the looking at English deci sions either by counsel or by court, but the citing them only. And in a late case on an indictment against several defendants for a misdemeanor in obstructing a proceeding under a penal law; two pleaded guilty, and the other not guilty, and offered those before him, as witnesses, there being an end of the matter as to them, agreeable to the case in 1 Strange 633. But the reason given in a modern case, for rejecting the evidence appears to be fallacious. "There is," says he," a community of guilt. They are all engaged in an unlawful proceeding. The offence is the offence of all; not the act of the individual only." Is not this assuming the fact that the others in whose case this co-defendant was about to give evidence, were guilty. It might be that his evidence, as it was

the object of offering it, would go to shew that these men, notwithstanding what had appeared, were innocent.

The counsel admit in the argument in this case, that where no evidence is againt the co-defendant, yet the jury must pass upon him and acquit before he can be heard.

The court adopts this language that in that case he might be sworn.

The being liable for costs is spoken of; and these out of the way, by being acquitted, or by being fined, the competency is admitted.

A defendant in an information against whom no evidence given, is admissible for the others. 2 Bar. 582. But, I take it, a verdict must be taken before he can be heard.

In misdemeanors, parties indicted separately from the parties on trial, or not indicted, though concerned in the transaction, are competent witnesses; and the same rule holds good in many species of civil actions, when the witness is not made a defendant.

As if A. and B. be indicted for assaulting the same persons, and tried separately, they are good witnesses for each other. 1 M'Nally, 204.

And so where A. B. and C. are tried in three several actions on the statute, for a supposed perjury, in their evidence concerning the same thing, they may be good witnesses in such action. 2 Hawk. pl. cr. c. 46.

It may seem unreasonable that a plaintiff or prosecutor, should have it in his power, by joining in an action or indictment to deprive a defendant of testimony that he would otherwise have had. But there being no evidence, in the opinion of the court, will restrain this arbitrary joining, and making a defendant, by giving leave to strike the name out of the declaration, or by directing a verdict to be taken for him. But if in all cases defendants in misdemeanors joined, could be witnesses for each other, it would tend to defeat every action, and indictment.

It would seem to be giving an undue advantage and the policy of the law would not seem to have come so far.

Since making the above note with a view to report to the court, notice having been given by the counsel of an intention to move in bank, I have met with something to the point, and supporting some of the ideas I have thrown out. This in 13 East, beginning 411, in the notes to the case in that page, referring to several cases of the ante-revolutionary period. The King v. Nichols, 17 G. II. 1742. The defendant was indicted for a conspiracy at Hick's Hall. The jury found him guilty of a conspiracy with one Bygrave. They likewise found that Bygrave died before this indictment found; and therefore pray the advice of the court whether the defendants were guilty as laid in the indictment? By Lee c. justice. "It is certain that in all conspiracies, there must be two, at least, or no indictment will lie, and therefore if one be acquitted, the other cannot be guilty." But that case differs; because one being acquitted, the conviction of his companion on the same record must be directly repugnant and contradictory to the other. But here no such contradiction, where the one is dead, any more than where one of the defendants refuses to come in plead, yet judgment may be given against the other.

Rex v. Kinnersly cited by Eyre, c. j. in Kinnersly's case, indictment for that A. and B. cum multis aliis, illicito, riotorè, routosè assemblaverunt, &c. A. acquitted; yet B. convicted on the score of the cum multis aliis being, which saved the appearance of contradiction on the record.

. In the case of the Commonwealth v. M'Clean and another, the jury having first passed upon M'Clean, and he being acquitted on the plea of insanity set up for him, it occurred as a question, whether the other defendant, it being a conspiracy that was charged, must not be discharged from the indictment, it requiring two, and it being alleged that A. could not be guilty of a conspiracy with B. who had no mind. It seemed to me at the time that he might have conspired in the act, though it could not be said in the will of the other; but of this I had doubts, and had a conviction taken place would have expected a motion in arrest of judgment; but the other was acquitted.

This all bears upon the difficulty I have suggested, and which governed me in the case of the Commonwealth v. Deuris and others, the impossibility of admitting the defendants to be witnesses for each other without involving the inconsistency of one being found guilty of a riot, and the other acquitted, there being no cum multis aliis laid in the indictment.

IT is provided by the constitution of Pennsylvania, that "in prosecutions for the publications of papers, investigating the official conduct of officers, or men in a public capacity, or, where the matter published is proper for public information, the truth thereof may be given in evidence." There is in this sentence, after the diversative conjunction or, what the grammarians call an ellipsis, a greek word which signifies deficiency, or the want of that which must be supplied in the mind, to make the sentence complete. In completing this sentence in our minds, we must go back, and take up what part of the sentence preceding the conjunction, is necessary to connect what follows the conjunction. In doing which we shall read the whole thus, "In prosecutions for the publications of papers investigating the official conduct of officers, or men in a public capacity; or in prosecutions for the publication of papers where the matter published is proper for public information, the truth may be giv en in evidence."

This may seem to carry the provision farther than the investigation of official conduct; for it may be said, that a matter may be proper for public information, though not relating to official conduct. But on that construction, there would have been no necessity for the specification of official conduct; for it would take in all conduct, where the matter published was proper for public information; and, therefore in applying the second branch of the sentence, we are warranted in applying it to other than the conduct of officers, or men

in a public capacity; and to consider the words, "the publication of papers, where the matter published may be proper for public information," as introducing a provision in the case of those who are not officers, or men in a public capacity. But the restriction to official conduct in the first branch of the sentence, must, from analogy, restrain the provision, in the second branch, to the official qualifications of of such as are candidates for offices. To extend it farther, would carry it beyond all rule that could be laid down, as to what should be a matter proper for public information. But as to what is matter proper for public information, the officer who prosecutes, must judge, in the first instance; and it would seem reasonable, and in the spirit of the privilege of giving the truth in evidence, that the accused should have notice from the indictment itself, that it is such a case, as the prosecutor for the state, considers to be within the privilege to give the truth in evidence. This reason will a fortiore apply, if matter proper for public information is carried beyond the official conduct of officers, or the official qualifications of candidates for office. But ever restraining this as we do, there would be great advantage to the accused, in having the information from the indictment itself, that the truth might be given in evidence, and this information would be given from the allegation that the matter of the publication in question, was prosecuted because false.

But can an indictment, in contemplation of law, be proffered, which does not charge an offence? The investigation of official conduct, or where the matter published is proper for public information, may be a duty: it is certainly a privilege. There must be an offence charged; or how can a grand jury be justified in finding a bill? An indictment for a trespass, without alleging a breach of the peace, cannot be supported. And so in the case of every misdemeanor, and of every crime; the act alleged to have been committed, must of itself, constitute an offence against the public. Falsehood on the subject matter of the indictment is here made the essence of it, by admitting the truth to justify. The law of libel is changed in this particular; and the prosecu

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