¶1The petition in this case prays that the transcript be stricken from the record. Six exceptions were taken to the transcript, though only one of them was urged at the argument. The exception urged being that one covered by paragraph 4 of the petition, namely: “4. That the Commonwealth opened its case and called several witnesses, who testified on its behalf, and then the Commonwealth rested; immediately thereupon, the defendant, through his attorney, F. J. Mervine, demanded the right to call the defendant to testify in his own behalf, that, had the squire been permitted to use his own judgment, he would have heard the testimony of the defendant, but the request of the defendant was strongly resisted by District Attorney Rhodes, who declared that the justice had no right to hear the defendant’s testimony, and that he, the district attorney, had no time to listen to the defendant’s testimony, whereupon the justice refused and denied the defendant the right to be heard.”
¶2Counsel for defendant contends that defendant had the right to testify, and that the justice of the peace must hear his testimony. In support of this posi*401tion, defendant’s counsel cites Sadler’s Criminal Procedure, page 171: “The practice has been, and, as we contend, still is, that after a party has been arrested on a warrant regularly issued, and appeared before the magistrate, the magistrate hears the witnesses on the part of the Commonwealth and the statement of the defendant where he desires at the proper time to make such a statement,” and cites further the case of Com. v. Wintersteen, 6 Dist. R. 641.
¶3As we view it, the mere fact that one is a competent witness under the law does not impose upon the justice of the peace the necessity of taking his testimony if oifered. This question is fully discussed in the case of Com. v. Wintersteen, 6 Dist. R. 641, and with the conclusions in that case on this point we agree.
¶4No statute has been cited by counsel for defendant which requires the justice of the peace to hear evidence on behalf of the defendant. Even though we accept as the practice that defendant has a right to make a statement, that would not, as we view it, mean that he has the right to insist on testifying as a witness. The transcript shows that the defendant was represented by counsel, whom we know to be competent counsel, that counsel proposed to call him to testify in his own behalf. There is a wide difference between making a statement and going on the stand to testify as a witness. This difference counsel for defendant undoubtedly knew. The transcript does not show that the defendant was denied the right to make a statement, nor that he asked that privilege. He has been denied no statutory right so far as we can ascertain from the transcript.
¶5The remaining exceptions have no merit, a number of them being directly negatived by the transcript itself, the others being mere conclusions and not warranted by the transcript.
¶6The exceptions are, therefore, dismissed.
¶7And now, April 8, 1922, rule discharged.
¶8Prom C. C. Shull, Stroudsburg, Pa.