People v. Labra

Bryan, J., delivered the opinion of the Court. Murray, C. J., concurred.

The record in this cause, as sent to us, although somewhat imperfect, discloses that the defendants were indicted for grand larceny, being charged with stealing two horses of the value of one hundred and fifty dollars, the property of one Guadalupe Soberanes. Upon the trial one Salgado, a party jointly indicted with the defendants, was offered as a witness for his co-defendants, having first elected to be tried separately— the defendants’ counsel expecting to show by him that the defendants were not present at the taking of the horses, and that they were not connected with the driving away of the same. The Court below refused to allow Salgado to testify, to which refusal an exception was taken at the trial.

Upon page 469 Compiled Laws of California, section 361, it is provided, “ Where two or more defendants are jointly indicted for a felony, any defendant requiring it shall be tried separately.” And in the following section—“ Where two or more persons are indicted in the same indictment the Court riiay at any time before the defendant has gone into the defense, on the application of the District Attorney, direct any defendant to be discharged from the indictment, that he may be a witness for the people.”

The more ancient authority, as to the competency of an accomplice or co-defendant, to testify to other defendants indicted, would seem to deny that he should be permitted to testify unless discharged by the State. But in many of those States where separate trials are permitted to each defendant, the doctrine has been held otherwise. It would seem not only reasonable, but just, that the Legislature in allowing defendants to sever in their defenses, intended by this method to provide against the hazard of an innocent man being prejudiced or injured in his defense, by evidence of the guilt of his companions in Court.

It might not unfrequently happen that the guilty man, troubled in [185]his conscience, knowing that innocent persons were arraigned with him under the same indictment, and were likely to suffer, should desire to testify to their innocence, even although he Was forced to criminate himself. The fact of all being arraigned together under the same indictment, where the offense was of such a character as to be susceptible of commission by one, should be no objection, where one has elected to be tried separately, in obtaining his testimony in behalf of his co-defendants. The jury would have the witness before them, and could test the credibility by his manner, and the consistency of his story.