#### STATE v. DAVID HAMLETT.

Criminal Law — Witness.

On a trial for an affray prior to the act of 1881 allowing defendants to testify in their own behalf, one defendant could not oppose the testifying of his eo-defendant for himself — the state’s counsel not objecting.

{State y. Cowan, 7 Ired., 239, cited and approved.)

INDICTMENT for an affray tried at January Term, 1881, of Wake Superior Court, before Graves, J.

This is an indictment for an affray and for mutual assaults against the defendant and one Young.

On the trial Young offered himself as a witness in his own behalf, and no objection was then made; but after he began to testify, the defendant Hamlet interposed the objection that he could not testify in his own behalf. The solicitor said he had no objection to the testimony of the witness in his own behalf, and was willing for him to tell all *521about the matter. The court allowed the witness to proceed, and the defendant Hamlet excepted. Both defendants were found guilty by the jury, and there was judgment accordingly. From which judgment the defendant Hamlet appealed.

Attorney General, for the State.

No'counsel for defendant.

Ashe, J.

The ground of the exception taken by the defendant to the ruling of his Honor upon the admission of the testimony of his co-defendant, Young, was, that by section 16, chapter 43 of Battle’s Revisal, a defendant in a criminal action is declared incompetent to testify in his own behalf, and this case was tried before the act of 1881, allowing them so to testify.

That is all so; but with whom lies the right of objection to such testimony ? Of course with the party against whom it is offered, and who is likely to be prejudiced by the admission of the testimony.

In this case it was exclusively the right of the state to object, against whom the testimony was offered, and we can see no reason why the solicitor might not waive the objection.

The defendant certainly had no right to raise the objection, for the reason that no rights of his on the trial could possibty be affected by its introduction ; for the state, under the then existing law, had the right to introduce the co-defendant, Young, to testify against him. So his only ground of complaint is that Young was allowed to testify, not against him, but for himself. But that was a matter entirely between the state and the co-defendant Young. If the state was willing he should be examined in his own behalf, it was no affair of the defendant, unless it can be shown to operate in some way to his prejudice on the trial. We are unable to see how he could be more prejudiced by his co-defendant *522being admitted to testify in his own behalf in a case like this, than in being introduced by the state as a witness to testify directly against him.

Admitting the witness was incompetent and it was error to receive his testimony, yet if it did not operate to the prejudice of the defendant it is no ground for a venire de novo. State v. Cowan, 7 Ired., 239.

There is no error. Let this be certified to the superior court of Wake county, that further proceedings may be had agreeably to this opinion and the law of the state.

No error. Affirmed.