The evening telegraph. [volume] (Philadelphia [Pa.]) 1864-1918, 1871-06-10

that she was the wife OF the prisoner Smith, the |
cause her evidence would tend to benefit her hus-
band band In Rex ys. Wood, i'd, the defendants were |
6ory in Rex avs vs. Smith, above cited ID S the 20 Queen
vs. Bartlett Cox, A. c.. los, the prisoners we're |
Jointly indicted for stealing potatoes i appeared
iound in the room Of one Of the defendants, and |
9sers @ in that tsG Of tbs the s h5 tOs One eoo
his apartment we're not the property of the prose-
colleague, admitted the evidence In the Queen vs..
Denslow, Cox Cr. q, los, the wife of defendant
was admitted q witness for a co-defendant on a
joint trial. upon the ground that each defendant had
distinct defense, and the conviction OF the one did
and doubt was expressed whether the case OF Rex
vs. Smith, above cited, was law TO same effect Is
resn rus Car AK R 4S was In 5eS kex tha s ss, tse
wife is not competent in trial where another and
her husband were charged with conspiracy to
abduct her; and 1t Is placed upon the ground that
conspiracy is jeint offense OF which both must be
convicted or both acquitted. We shall presently see
that the wife Is competent against her husband upon
charge of abduction when the force continued
up to the marriage, and in when there
c. and P 65s, it merely held that the fact OF
the marriage OF witness being after subpoena served
potency as a witness; the cases OF State vs Wech,
1s Shep, 80, State Vs. Gardner Root, 1885, Com. vs.
Sparks I Allen, 5s4, Com. VS.. Schriver and Gordon
vs. Com. evidently decided upon the authority OF
Rex vs.. Cvger and other cases which rest thereon,
pressly overruled In the cases of State vs. Smith,
Iredel 4O2, Pulen VS.. People Dough, as, and q,
s not OV nea aas me ws
co-defendant but these cases were decided upon the
principle that the husband defendant not being
competent witness for the co-defendant the wife was
ruling in the People vs.. Bull, 10 John, s5. The
reason Of the rule which excludes a defendant as
witness for his co-defendant Is manifest, and it
would seem to extend with equal force to the wife.
called against his co-defendant and therefore no
disqualification on account OF the husbands interest
VS.. The People Parker's Or. C., 1l9, that when a
co-defendant may be called as witness, so may the
T. SM el1; Williamson VS.. Rex, * i [. i. 10 '''''i'
Rejecting, therefore, the cases which have been
9@yerrnIled @ or mod modised or are inappcaSe or when
| Of her husbands interest the weight of authority
| seems to be overwhelming that in collateral pre-
to charge him with crime. And 1 think the
a' auhory While there is oms OTee
in the rule as laid down in Rex VS.. Cvger that to
nate her husband may disturb in some Instances the
domestic relations, it must be borne in mind that it
is perhaps choice between evils, and that If the
broad rule in that were the law, society would
suffer greatly by the closing Of the mouths OF wit
competent to testify. The individual evil in isolated
cases must give way before the public policy and
Of witness shall not be closed for private reasons
when the general interests Of the public are affected
This brings us to the question whether in the case
| OF two defendants, Jointly indicted and separately
tried the wife OF the defendant upon trial may be
examined as a witness for the Commonwealth?
Something may perhaps depend upon the charac-
ter OF the proceeding. Where the ohense is Joint,
In conspiracy, when the defendant not upon trial
must necessarily be anecJed by the verdict, 1t may
well be questioned whether she would be compe-
| tent; and so in any other case where both defen-
dapts are necessarily involved. But where one may
be acquitted and the other convicted the same rea-
son does not exist. And hence 1t must be observed
that there s a clear distinction between the compe-
tency OF the witness and the privilege or right to
husband or wife. The witness may be competent
for some purposes, and not for all purposes.
| Is there any solid distinction between what is
proven as a collateral proceeding and separate
trial, when the offense is not necessarily joint? In
between nd
separate trial? II the prisoner had been indicted
p separately nave no doubt, under the authorities
| witness for the Commonwealth, Notwithstanding
the fact that her husband was charged with the
| same offense in another bill.
| Why? The reason is clearly stated by Lord Ten
terdeA In The King VS.. Bathwtck, that nothing
said by the wife in the case, and no decision OF the
Court founded upon her testimony, could be there
after received in evidence against the husband,
And In Tayler Ev, before cited, the fact Of 'the
| jury not being charged with his (the husbands in
competent. In Phillips on evidence p co. he says:
| when, however, OF two or more one OF them is
not upon trial at the time when the others are
sible as witness, citing King vs. Williams, F. Q:
and p, 2s4; cited by Baron Anderson, in - M. and
Kr., 494. TO the same point is Wh Amer. C. L.,
"But although in these cases the wife will be per-
mtted to testify agaidst her husband IL by means
follows that she will be compelled to do So and the
better opinion is that she may throw herself upon
the protection OF the Court, and decline to answer
any question which may tend TO expose her hus-
band to criminal CHARGE" Taylor on Ey., sec
1885.
In Roscoes Nisi Prius Ev., p 17s IL Ed, the rule
is thus stated
.tThere has been some confusion between incom-
potency and privilege; and It was at one time
thought husband or wife was in every case an In
competent witness with respect to any fact which
might have tendency to criminate the other (Rex
VS.. Cliviger but that decision is no longer law; all
subsequent cases, with one exception (Rex VS.. Geed
Russ), treating husband and wife, except in an
indictment against each other, as competent wit
nesses.
| "But though the husband and wife are In such
cases competent, 1t seems TO accord with principles
| OF law and humanity that they should not be COM
| PEELED 10 give evidence which tends to crtminate
each other; and in Rex VS.. All Saints, M. and ST.
1884, Bayley, j. said, that If the witness mad thrown
herself upon the protection OF the Court, on the
| ground that her answer might tend to criminate
her husband, he thought she would have been en-
! titled to It."
The same doctrine is recognized in Rosco's Grim.
Ev. See pages l4IS
| There are number Of cases in which the wife has
| been admitted to testify against her husband when
separately tried or in which the principle has been
In the Commonwealth VS.. Easland, case deter
| mined in the Supreme Judicial Court OF Massachu-
sets q Mass 15), the application was TO admit the
wife when her husband was on trial Jointly with
other defendants The Court Strong, Sedgwlck
| SeWan and Thacher, Justices) ruled unanimously
that she could not be examined. But say the Court
''To have had the benefit OF her testimony they
| should have moved TO be tried separately from the
husband, which the Court would have granted had
this been assigned as the reason for the motion" T"
This Court has long been distinguished for the learn
ing ana ability OF its judges and for this reason the
case last cited would seem to be entitled 10 great
| weight
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