The Commonwealth of Kentucky
vs } Brief on Application for an Appeal by Defendant.
Thomas B Wadlington

The defendant was indicted at the June term 1860, of the Caldwell Circuit Court, for the murder of Milton A. Cartwright the 17th of January 1860, by shooting him with a Gun & pistol and striking him several times with an axe.

The defendant was tried at the last term of Said Court, commencing near the close of November last, and the jury returned a verdict of guility, as charged by the Indictment, and the Circuit Court having overruled a motion for a new trial, sentence of death, by hanging, was rendered by the Court, and the defendant Prays an appeal to the Court of Appeals. The prisoner now applies to a Judge of that Court for an allowance of the appeal according to Section 329 of the Criminal Code.

The Bill of Exceptions taken by the Prisoner shows the evidence given on the trial and the rulings of the Court in admitting or refusing evidence; and in Giving and refusing instructions to the jury.

The grounds for the appeal are founded on subsections 1 & 2 of Section 334 of the Criminal Code, which are as follows:

"1 An error of the Circuit Court in admitting or rejecting " important evidence.

"2 An error in allowing instructing or in refusing to instruct " the jury."

1. On the trial of the case, the Prisoner offered William J Wadlington as a witness to testify in his behalf. The Commonwealth's Attorney objected, and the Court Sustained the Objection, to which the Prisoner excepted; and that presented the first question for consideration. P. 28.

William J Wadlington was jointly indicted with the prisoner for the murder of Cartwright; had been tried and found guilty, by the verdict of the jury, of manslaughter and his Punishment fixed at confinement in the Penitentiary for eight years. At the time he was offered as a witness, no judgment had been rendered upon the verdict, but was suspended upon a Motion for a new trial.

We think the Court below erred in not permitting Wm J Wadlington to testify in the case. We presume the decision of the Court was founded upon the Case of Adwell vs The Commonwealth, 17 B. Monroe, 310.

That case is different from this in one very essential particular. The prisoner on the trial and the person offered as a witness were brothers, and were jointly indicted for murder, and the one offered as a witness had never been tried. Here the person offered had been tried and convicted by the Verdict of the jury. He therefore should have been considered as no further an accomplice, and as out of the record. He had no legal interest in the result of the case then to be tried. He could neither be injured or benefitted by the result. His relation to the accused was a matter to be considered by the jury, and such weight given to his evidence as they

thought it deserved. The competency of a person offered as a witness is a matter of law to be decided by the court; and the weight and influence of the evidence is a matter of fact to be decided by the jury.

Prior to the adoption of the Code of Practice, the granting of Separate trials. Where more than one Person is indicted, was a matter of discretion with the Court, but by Section 235 of the Criminal Code it is a matter of right in all cases of felony, and of discretion in cases of misdemeanor. We submit, whether, since the change of the law in that respect, When a separate trial is claimed, the prisoners do not Stand precisely in the same position as if they had been separately indicted?

The reason of the old rule of the Common law that excluded one jointly indicted from being a witness for his accomplice was, he was a Party to the record, and persons thus circumstanced were excluded upon the Ground they were interested in the result. Lampton's Esqrs v^s Lampton 6 (Mon. 61). The law has undergone a radical change in that respect. The Competency of witnesses to testify on the trial of any case, civil or criminal, is prescribed by Sections 669 to 675 inclusion of the Civil Code. The witness offered in this case does not come within any of the exceptions therein laid down. The principle for which we contend is virtually decided in Thompson v^s Commonwealth, 1 Metcalfe, 13. In that case, several persons were jointly indicted for Murder, Thompson being one of them. He was tried seperately and offered to prove an alibi by the Wives of two of the

prisoners who were indicted jointly with Thompson. The Court say: "The mere fact that the husband is a party to the record, does not, of itself, exclude the wife as a witness on behalf of other parties, but the rule of exclusion is only to be applied to cases in which the interest of the husband is to be affected by the testimony of the wife." In that case, the Court decide that the interest of those not on trial, but ^who^ stood indicted jointly with Thompson, had no interest in the result of his trial. So in this case, William J. Wadlington had no interest in the acquittal or conviction of Thomas B Wadlington. The result would in no wise had any effect Whatever on the case of the witness, William J Wadlington. Suppose the wife of William J Wadlington had been offered as a witness for Tho^s B. Wadlington the question of his competency or incompetency would have depended on the interest or absence of interest of her husband William J Wadlington in the case against Tho^s B. Wadlington. But according to the ruling in Thompson's case, She would have been a competent witness, and the same reason that would make her competent, applied to and makes her husband competent, towit, he had no interest in the result of the prosecution against Thomas B Wadlington. The proposition is too plain to need further illustration. In Todd v^s Luckett 18 B. Monroe, 128, the Court said: "The fact that the witness "was a party to the record did not render him incompetent." The law of the subjecthas beenchangedby the Code of "Practice (Section 670) and those only Who are interested" in the issue, in behalf of themselves are excluded as "witnesses." This "change of the law" applied to every

class of cases, common law, equity and criminal, because there is no restriction; it has a general application to all classes ^of^ cases. In the case in 12 Howard 361, refered to in Adwell's case, the Supreme Court say that no law of Virginia passed since 1789 can be recognized because the Judiciary Act refered to the State laws then in force — That if the Court decided the case according to the law in force in 1851 the opinion would be in favor of the competency of the accomplice.

The Supreme Court of California; in the case of the People V^s Labra, 5 California Reports 183, decided that where an accomplice or Co-defendant in a criminal action, under the Statute of that State elects to be tried Separately, he is a competent witness for the other defendants, charged with the same offense, the credibility of his testimony being left to the jury.

The Supreme Court of Indiana in the cases of Marshall v^s The State 8 Indiana R. 498; Sloan v^s The State, 9. Indiana R. 565 and Hunt v^s The State, 10 Indiana R. 69, decided that Where several persons are jointly charged, but seperately tried, they are competent witnesses for each other if they consent to testify.

Indeed that seems to be the universal rule by the modern decisions. It is at last the only rational rule. If the person offered as a witness has no legal interest in the result of the trial — can neither be injured or benefited let the case be decided the one way or the other he stands indifferent between the parties and consequently is competent to testify. If the Court had granted William J Wadlington

a new trial the record of the conviction or acquittal of Thomas B Wadlington would not be competent evidence either for either party on another trial. We cannot therefore perceive any proper legal ground to sustain the judgment of the Circuit Court in rejecting William J Wadlington as a witness, and for that cause alone the judgment of conviction should be reversed. But if the Court entertain doubts as to the correctness of the foregoing views is it not a question worthy of careful consideration and argument? This Court was organized for the Purpose of settling legal Principles not for deciding special cases. The question now presented should be settled clearly, distinctively and authoritatively for the guidance of the lower courts, and we trust an opportunity may be affored for a full argument.

Since the foregoing was written, We have examined several Other cases which we think are direct authority upon this question to which the attention of the court is respectfully requested. Some of them have been refered to.

In the case of Garret v^s State of Missouri 6 Missouri Rep. 4, the Court decided that an accomplice is a competent witness and may be examined, if he be willing, although he is indicted along with others, Provided he be not put upon trial along with the others; for an indictment as to several is several as to each; so if he has pleaded guilty, or been seperately convicted, provided judgment has

not been pronounced upon him for an offence which disqualified him.

In Jones v^s State of Georgia, Kelly's Georgia R. 610, the Court held "Where one of three defendants, jointly indicted, elect to be tried Seperately, under thepProvisions of the Penal code, the trial, as to him, is to be considered in the Same manner as if he had been seperately indicted for the Offence; and One of the defendants, not upon his trial, is a competent witness for his accomplice, to prove his innocence." P. 617. The court in support of the opinion refers to 1 [Chith]: Criminal Law 605; Roscoe's Crim: Ev: 118; 2 Russell on Crimes, 597; 2 Hale, 281; 1 Hale, 305; The U. States V^s Henry, 4 Wash. Rep. 429.

The Court's attention is Specially requested to the case of The People v^s Labra, 5 California R. 184. In that State a Statute was passed giving the right of a seperate trial as in this state. The accomplice is declared to be a competent witness for a co-defendant on trial; and the defendants stand as if they were seperately indicted. We might multiply cases on this Question. The current is all one way.

2. As respects the instructions, the record is very badly made up. It is difficult to ascertain by Whom the refused instructions were offered. Upon the whole instructions as given by the Court we think they are liable to the charge of being misleading. The instructions Marked No. 3 on Page

55 if properly given, which we do not admit, instruction No 10 on Page 61 should also have been given, because by giving the former and refusing the latter the Prisoner was apparently put in the wrong.

We howsoever however submit those instructions to the Court without going into any analysis of their contents.

We believe upon the whole case, that if an opportunity is afforded us, we will demonstrate that errors of law have been committed to the prejudice of the Prisoner for which the judgment should be revised.

Farrow & Harlan

Commonwealth
v^s } Brief
Wadlington

On application for an appeal.