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

mony on this might be such that
to issue a warrant for her apprehension Ewsn "%nS
nole troseq by the District Attorney would not be
conclusive discharge. She would still be liable to
by jury the husband might then be witness
against the prisoner, for his testimony could not in
that case inculpate his wife," This was evidently
an unconsdered case; no authorities were cited nv
the Recorder and mis- decision lacks the weight OF
state vs. Bradley, Rich. Law IS. Cl les. cited by
defendant upon this point, is against him, In that
but was not upon trial The wife was admitted 20
testify for the prisoner on trial. but was not per-
ed 70 state snytnng wnca !. would @ crimnate her
to testify for the prisoner on trial. she competent
to testify against him.
what right has the prisoner to object to the testi
mony OF the witness upon the ground that she Is the
wife Of co-defendant? The priviege-and it is
only privilege-which exempts the wife is not his
1t is properly The privilege OF the husband. II the
the stand the prisoner could not have objected The
witness might have claimed his privilege and de-
clined to answer. But that he would have been a
competent witness for the Commonwealth. If willing
to testify is too well settled to need authority and
If the husband be competent, why not the wife2
have so far considered only the general rule as
applicable to husband and wife. propose to 20 a
step further, and examine the exceptions to the
rule. and to whether this case comes within any
Of the exceptions. 1t is well known that hardly a
week passes In our Criminal Court In which the test-
m0ny Sf wIe is not reeeved es against her
victed and sentenced upon the unsupported testi-
mony Of the wife. And this 1t not because such tes-
timony may not impair the harmony OF the domestic
relations but because there are other and higher
interests which demand that in certain cases the
mouth OF the wife shall not be closed, even though
she open 1t only TO charge her husband directly with
crime. ......... ...
The exceptions to the general rule are such as
arise from the necessity OF the case partly for the
protection of the life and liberty OF the wife, and
partly for the sake of public justice. In all msnner
of ofcnses involving personal injury to the wife,
affecting her liberty, she has been allowed to testify
directly against her husband. Thus woman is a
competent witness against man indicted for forci-
BILE abduction and marriage If the force were con-
tinuing upon her until the marriage, OF which fact
Weight Of the sutSorties notwit5stsndins With
her subsequent assent and voluntary
cenS6tstion; for otherwise the wis the q o. offender
: 943 citing numerous cases In a case before Mr..
Baron Muoch, where the defendants were charged,
In one COURT with conspiracy to carry away young
lady under the age OF sixteen, from the custody
pointed by her father, and to cause her to marry
one of the defendants, and in another court with
heiress and to marry her to one OF the defendants,
the learned jndge was of opinion that
time Of the trial the lawful wife of one of
the defenoants, she was yet competent witness
although there was evidence to support that part
Of the Indictment which charged force and also on
the ground that the latter defendant, by his own
criminal act could not exclude such evidence
against himself. Wakeheds Case, Lewns Or. q,
20, 97s; Russ 6o6; Stark Ev., 402 (N), I'd Ed1
was tired before the House OF Lords in 1881
principal in the second degree for rape upon his
own wife, she was permitted to testify. Howell's
st. IT,, 402. Upon the trial the following question
was propounded to the judges, whether the wife
In this case might be witness against her husband
for the rape?" and the answer was, "She might: for
she was the party wroDged, otherwise she might be
a witness against his lord in such cases."
This case was at one time thought not to be law,
but is now recognized In all the leading textboo
In all cases of personal injuries committed by the
husband or wife against each other the injured
party is a competent witness against the other. So
IN nftyf ortfn rIrtto
wife has been held competent In Nathans case,
Brewster 14s, the wife was admitted to prove both
the desertion and the marriage and such is the
slant practice In this court In like cases.
Upon the like ground of necessity the wife has
been permitted to prove certain secret facts, which
no one but herself could know. Thus, upon ap-
peal against an order OF fliaton, in the case Of
married woman, she was held competent witness
to prove her criminal connection with the defendant
though her husband was interested in the event.
Greeneaf, sec 344 Corn vs.. Shepherd. 6 Bin. 233.
many Of the other States Of this Union, as well as
the current OF Judicial decision, Indicate the policy
OF the law not to be not to impose any unnecessary
to permit questions affecting their interest or pre-
udices to go to their credbility In this State the
law allowing the parties to suit to testify has been
extended to the parties In divorce suit. In view
OF sl these facts for US now to return to the ex-
ploded doctrine OF Rex Vs. Ginger would be to take
q retrograde step, without sound reason and au-
thOrtty to sustain US.
From the authorities cited, we may safely deduce
the following rules, viz. =
First. That although the general rule undoubtedly
Is that husband wife may not TESTIFY against each
other, yet in collateral proceedings they may TESTIFY
to facts tending to criminate each other.
Second. Thatiw here upon joint Indictment there
Is separate trial, the husband or wife OF the de-
fendant not upon trial Is not necessarily an incom-
petent witness for the commonwealth. III Wiling
TO be examined, he or she is competent, except,
perhaps where the ofense is In its nature joint as
In conspiracy.
Third. That while in such cases the husband or
wife is competent witness for The Commonwealth,
1t is notwithstanding, his or her privilege TO de-
cline to testify to such facts as VIII crminate the
other.
Fourth. That husband or wife may testify directly
against each other In cases OF personal Injuries to
either committed by the other and, aso as TO facts
which are In their nature secret and affecting The
person.
this case we shall have difficulty In disposing OF
the reasons now under consideration. The witness,
Anne McKeon did not object 10 Delng examined.
The objection came only from tne prisoner Sne
was not offered as witness aga ainst her husband or
to criminate him in any way, ana IN TACT made no
reference to him during her examlnation-in-chief.
The ofense was not necessarily JOINT, ana tne Ver-
dict for or against the prisoner could not affect her
husband Except in FORM the cases were as distinct
as a. taSugn taey were Ser hns6snd III IUI su
stance the inquiry was purely conateral, Tor her
husband could not be affected by her testimony.
Nothing that was said by her, and no Judgment OF
the court based upon her evidence, could ever be
received against him upon the trial OF the indict-
ment charging him with the same offeRse. This
and not the OF the proceeding is the true test
OF the admissi5ity OF the testimony.
But it Is submitted that she was competent wit
for another reason. The ofense was OF secret
nature, affecting the person OF the wife. the tn-
dictment charges that the crime was committed
with the aid of certain instruments and drugs. IL
involved an act of personal violence to the wife, 1t
is conceded that If assault and battery had been
charged, she would have been competent. But we
look at the substance of the oense laid as well
as the form. But even in the latter aspect It is TO
be observed that the bill charges the onense
arms" etc. And this is is matter oIsubstance. Its
omission would have been fatal. Nor is there any
thing to show that the witness was consentlng
partV In no part of her testimony did she that