The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1875-01-30

tlon as 10 MS competency as witness-was per-
dict from which appeal was taken TO the Gen.
eral Term, and the case was deliberately argued,
we may suppose, certainly by the Bar, certainly
elaborately considered by the Court-and there
was no objection taken either by counsel or by
the General Term or tue Court that the plaintiff
had been improperly admitted as a witness. and
tnefe was no hint or suggestion that by virtue OF
u tne act OF 1861 he was not competent witness:
On the contrary, the Judgment was taken for
errors IN the admission OF the evidence OF other
witnesses But there was not hint or suggestion
Dy the counsel Tor the pantln In this by Inc
Court that the witness was not an entirely compe-
tent witness. On the contrary. by implication and
was competent. Observe. Your Honor, the opln-
ION At the General Term was written Dy Judge f.
the decision In Damn VS.. KINGDOM, showing that
In his opinion, upon his
SOBER SECOND THOUGHT
with more deliberate cQnsid Grafton 1t con-
quoted MIN TO the conclusion that mis- decision In
Dann against Kingdom was erroneous and could
decision OF superior court q decision OF law con-
strued ana unsustained by any authorities,
decision witch is maniestly repuRn mt TO any
statute upon which 1t purpOrts to be founded, and
the question Is, WIN your Honor be guided by
another inierentlal reason why the plaintiff SHAH
not be witness In this case In his own benalf
based upon the proposition OF law which he mas
promulgaled-namely. That in collateral procee !.
ln2-that IS To say. In case between thira
partes-neither a husband nor wife Can give test.
mony tending to criminate the other. Your Honor
observes the terms OF the proposition. Now the
first reply TO tins. Is tnis:-Aithough the PROPOSE
ton here under debate. Inc question here Is
as 10 this Witness whether he may be sworn
as witnessmwnereas this proDosltlon don't
touch the question OF his competency, but goes
only to intercept the delivery OF particular test-
mony, testimony tending TO crimlnate the vile.
so that In the sight OF the proposition even II 1t
be true, he Is competent witness, and must be
sworn and allowed generally 10 testify In the case,
ana II the proposition Is true, when II comes TO be
seen II he testies against the right, then the gen.
tlemen may interfere and stop the evidence. II
Your Honor Please, the proposltiOn IS not q valid
DrOuOSltlOn w.
law. 1t Is not the law OF England and pre-eml
nenlly and empnalcally 1t Is not the law oi New
York III the collateral proceeding, l. e., acting
between third parties, tending to crmlnate one
another. That rule oil law was thrown out IN the
thrown out, but concede was adjudicated in that
case, case which my learned adversary mas not
sion he forgot to Gail Your HonOr's attention to
the case In " hen II was rejected, and the Court
overruled II. For soon alter, IN TWO cases reported
In sixth New YORK Reports, tnat very Court which
originally promulgated 1t receded lrJm their posi-
ton aud announced the principle, the legal rule.
which enectually overrued 1t IN these TWO Cases.
Husband and vile were admitted To testify In the
one case, although the testimony went directly to
convict the husband OF perjury. and IN the other
case went directly TO convict them both.
PERJURY AND BIGAMY.
This case was Overruled there. But meanwhile
the erroneous view had some Roadway, and as
Your Honor Is aware OF the lecundlty with which
erroneous opinions propagate themselves, that
rule IL Law got Incorporated In some books OF law
and Was adopted In some courts oil this State. al
though the rule has been renounced In England
L
init that some of the courts OF Ihls country Il Is
still an active principle but not in New York.
Never has 1t been the law In this State. Never has
1t been recognized as q canon OF the law OF EVIL
denc. by any authentic writer
Mr.. Pryor, after quoting from Greeneaf and
several other authorities, continued. In o recent
In this state (AbbOtt's Reports, new series.
volume ", page SOY the Oh Insurance Company
against Noble. Judge Blair propounds the prln-
ciplc IN these words:-'That the evidence or nus.
band and vile undoubtedly receivable in col
lateral proceedings without the purpose of prov
nothing material iS,ua.
though the evidence may tend to crlminate or
contradict one or the other" That, sir. IS the
language oil the law OF the State OF New YORK. In
Rhode Island the rule, as contended lon by the
learned gentlemen on the other side, nad been
State. it was one OF the States where this jur!s-
dictiOn had been effected and vltiaed by tile Origl-
IN a recent case, Tns State against Briggs
70 Rhode Island, 1911, The Court OF Appears
OF that State differed from the anthem
ITCHY and the correctness OF the old rule, the
rule commended for by the genrlemen on the other
SIDE, was brought directly under criticism and
defendant was convicted on charge Of ABORTION
produced on Mary Flynn; the case came up IN q
Bill OF exceptions on the ruling OF the Court below:
the first exception was based on the fact that the
said Mary Flynn was single woman, aud tnar she
was got with child by the said liackert, who EN-:
IN the court below the said Hackest vas called as
a witness, and admitted to testify s<ainsG the de-
tendant, and that the testliylng Of each one,
though guilty oil an indictable offence was admit
TED, this Racket being an accomplish to the
judgment held the ruling Of the Court b low to be
correct In admitting the evidence. 1t held That
ramg 0 Inc S0urs peiow was SCUM adu
ceedngs. They then say that the true. sound,
logical and philosophical rule Is to admit the test-
mOny OF the vile. On tails subject l Will cite TO
Your Honor the declaration, the opinion or one
VINO is high authority in law. l mean the late
Judge Cowen, VINO in . note pending page ~. Pull
lips ON loot note 40 uses this language :-"Indeed
IL would seem TO be q settled doctrine and author
ity, and principle, that the testimony OF husband
nd reCeVe0 tradiCt Crlmt.
nate each other III
COLLATERAL MATTERS
In all cases except where IL called to contra.
dict or crimlnate each other as a party to some
cause" Now, Sir, thus STANDS the Law upon the
ance OF me decisions in England and by the uni
form decisions OF New York, namely, that In col
lateral IS TO say IN an aeion 6e
petent ana compellable, certainly competent
There was question whether cOmpellabe, but
certainly competent TO testify, although tnaC testl-
mony tended directly to criminate the other. nus
band or vile, as the case may be. But Y Your
Honor please, though the purpose OF the law be
sound though the rule be valid as laid
down by the learned H., gentleman, it does
0' the seo' rule fe are cousdernS it now
upon the hypothesis that 1t Is sound law, tnat
neither husband nor wie IN collateral proceed
ing can give testimony tending TO crlmnate the
Others that Is TO say, tending to accuse or convict
the other OF a criminal charge, and 1t was never
petent Ia q collateral proceeding TO give evidence
which tended merely to the disparagement or TO
the lnamy OIL the Otner. instead OF Wasting your
time and wearing out your patience with the cOpi.
Gus citation OF AUTHORITIES which have at hand,
have selected one authority rom the State OF New
Jersey, wnere the law c0ntended Tor by nv learned
adversary has Deen pushed to as extreme an ex-
tent us in any STATE. ] nave selected q case for
that State wherein the Imiatlon OF the rule, as /
now state 1t, is prOpOunded by the Court, pro-
pounded with bold reluctance and under the con.
stralnt OF the uniform stress and strain OF author
fty. The Court says:-"But IN the now before
this Court the charge OF the husband direct: his
charge was that he came upon his wife IN fG2rdnte
Jjx.fyf - m ma nnlv
CONSIDER alton when remains IS, was 1t crlmina-
ton within the meaning oil the rule AS The vile
had been tried ana acquitted the charge was OF
an offence Tor which she could not he Indicted. In
the case above referred to o. Dem. ex den. or
stewart N. Johnson, 8, Har. a. this case received
the consideration OF the Court and it was there
held tnat the evidence, to De admissible, must
charge crime. IL was not enough that 1t attrl-
buted moral rurpitudc technical crme-that Is,
an act ~ its nature lndictaDe-must De the direct
imputatlon OF the evidence. IL was admitted that
THIS rule was an Imperfect one; that accusations
IN the form OF evidence, proceeding from husband
and wife against cdch other, OF acts highly igno-