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

tency OF the wife to give testimony concerning or
Of the settlement OF pauper. marriage, in fact
had bee n proven between two paupers after which
the first wife was called TO prove her prior marriage
with James whitehead, the male pauper BuS bne
court held her incompetent. Says Ashhurst J.:-
"But the ground OF her incompetency arises from
principle OF public policy which does not permit
husband and wife to give evidence that may even
tend to criminate each other The objection is not
confined merely TO cases where the husband or wife
are directly accused of any crime: put even in col
lateral cases, Il tneI evidence tends that way It
1t viii be observed that this case goes to the ex-
tent Of excluding the wife even In collateral pro-
ceeding where her husband has direct interest in
the upon trial. 1t soon seen that the court
had gone too far in the King vs. Cliviger and the law
OF that case was shaken ia the King VS.. All Saints,
M IN s.; lS4; & and was overruled M in the King % vs.
ing the rule to proceedings directly against the hus
band. Says Lord Tenterden, G. j., in the latter
have been founded upon a supposed legal maxim
or policy VIZ, that wife cannot be a
gree w1sseTs to crmhate her hssRUs husband This W viii
be undoubtedly true In case of direct charge and
proceeding against him for any offense; in such
case she cannot be witness to prove his innocence
OF the cherge. The present case is not a direct
charge so proceeding against the husband. 1t is
true, that II the testimony given by both be con-
sidered true, the husband Cook, has been guilty
OF the crime OF higamy but nothing that was said
by he We N ts case nor decision OF the Court
after be received In evidence to support indict-
ment against him for the crime"
cited in the defendants paper book to the point
that wife may not give testimony tending to
Cliviger, which submit is not law now TO the ex-
tent that it formerly was-the rule being that wife
may give testimony tending to criminate her hus-
band, in collateral proceeding. when, as was OBJ
served by Lord Tenterden, In The King vs.. Bath
wick, above cited, nothing that said by the wife
in her testimony, nor any decision Of the Court
founded upon her testimony, can affect her hus-
band.
Witnessed 1Qatnat each q
directly interested IN the event OF the proceeding
yet in collateral proceedings not immediately al
fectng their mutual interests their evidence is re-
ceivable, notwithstanding it may tend to crimnate,
or may contradict the other, or may subject the
other to legal demand" Greenleaf on Ev. sec. 342
citing King vs. Bathwick, and q number OF other
English and American cases.
"Although husband and wife are not allowed to
be witnesses against each other, where either Is d.
recuy and Immediately interested in the event OF
the proceeding, whether civil or criminal, yet in col
lateral proceedings not Immediately affecting their
mutual interest, their evidence is receivable, not
wthstandlng that the evidence OF one tends to con-
tradict the other or may subject the other to legal
demand. or even to criminal charge. Phillips on
The same principle is recognized in Roscoe's
Criminal Evidence. Says that learned author (see
p. 14D -"It is not In every case in which the hus-
band or wife may be concerned that the other is
one case, laid down as a rule, founded upon prin-
cple Of public policy, that husband and wife are
eliminate I each other Citing Rex VS. CliVigen hf But
in subsequent case the Court OF Kings Bench,
after much argument, held that the rule as above
stated too large, and that where the evidence OF
the wife did not directly crimnate the husband, and
could be used against him, and when the judg-
ment founded upon such evidence could not affect
him, the evidence Of the wife admissible" )"
Citing Rex VS.. All Saints. 1 Phil. Ev. 164, Ed; 6
An. IL s., 1874.
In Taylor on Ev. vol. 2, S ed, sec. 1921, sec $780,
after stating the rule which excludes the hus.
band or Wife, or one defendant from testify
ing against the other, the learned author says:-
But II ough the rule OF exclusion is thus stringent
when married person Is criminally accused in con-
junction with others, IL is clear, that where mar
red defendant has pleaded guilty or is entirely re-
moved from the record, whether by a verdict pro-
noanced IN his favor. or by previous conviction,
or by the jury not being charged with his interest
at the time OF the trial. his wife may testify either
for against any other persons who may be parties
to the record Citing Rex vs. Thompson Fost.
& Fin, s24; Hawksworth VS.. Sholer, 10 NJ. and W.,
%; Rex vs.. Williams. c. and p, 2s4, and other
The reasons for the rule excluding husband and
wife from testifying for or against each other
twe-fold. First. The community OF interest subsist-
ing between husband and wife and the identity OF
their legal right II the husband has such interest
in the matter in controversy as rendered him in
petent. Second Motives OF public policy which
excluded them upon the ground that it would tend
to disturb the harmony or the domestic relations to
allow the wife or husband to be witness for or
against each other.
The principle which excludes party in interest
from testifying extends to husband aHd wife, and
applies to all cases in which the interest OF the other
are involved. Greenleaf on Ev., 334-5; Rex VS..
Smith, Moody Or. C. 29O; Rex VS.. Rand, ibid, 2si.
Bartlett, Cox Cr C. 105 and in Reg. ys. Sllls G.
and Rex, 494, such evidence was rejected, because
So far as the husband and wife are excluded from
testying from motives OF public policy, there would
seem to be no reason for any distinction as to whe-
ther they called TO testify for or against each
other. And in Rex vs.. Sergeant Ry. Moo. 1852
C2l E. g. l. R. 1857 II was held that there was no
such distinction. The same principle Is recognized
by Greenleaf, "and when, in any case they are ad-
missibe against each other they are also admissible
for each other" Roscoe lays down the rule thus :
"The circumstance OF OF the parties being called
for against each other makes no distinction In the
law" See page 147. To the same poini is Wharton,
II must be borne in mind that there is a marked
distinction between the competency OF the husband
the competency OF either to testify In a collateral
proceeding, or in one that is analogous thereto.
That this distinction has been lost sight OF In many
OF the cases cited by the learned counsel for the
prisoner, l think Is very clear. Two OF the cases
referred to, viz, Commonwealth VS.. Shiron and
Commonwealth vs.. Gordon, are undoubtedly at va
rance with the rule l have referred TO. AS TO the
first, have no report beyond the brief syllabus In
Wh p. 700, pl. 1910. This is TO be regretted, we
have no light as to how tar the case was con-
sidered, and 10 what extent 1t is to
be regarded as authority In Com vs. Gordon,
terry, 1t was held that the husband OF the woman
with whom the adultery was said to have been COM
mitted, was not competent witness for the prose-
cution, mot because (says Brewster ~ this evil
dence can be used as evidence against him either
for purposes OF defense IN a desertion case or OF
offense in suit by him for divorce but he should
be heard because the evident effect OF his testi-
moDy is to affect the marital relations" There are
no authorities cited by the learned judge and 1t was
probably ruled hastily at Nisi Prlus and without
subsequent consideration. Our most learned
text writer's, as we have already seen, and many
of the modern cases are the other way. To those
already cited may be added, King vs. Rudd Leach
Cr c., 1877, when the wife was admitted to testify to
the forgery OF a bond which her husband had ut
tered; The King VS.. Hallway, Cox Or. O., 29s,
when the husband was admitted to prove that the
wife had no authority to sign his name In prose-
cutlon for forgery, in which the wife was charged
in one count as a cO-cOnsplratOr; and Chamberlain
vs. The People, 23 N. Y. r.. S5 where on an indict-
ment for perjury, committed In a divorce suit the
wife was held competent to prove sexual cOnnec-