Deseret evening news. [volume] (Great Salt Lake City [Utah]) 1867-1920, 1890-12-31

competency for . trial IN q justice's
court, and . different rule for . trial
VI the came ofYense on IN appeal
70 the District (turt. And there
are many ofIensesof which Justices
ourts have Jurisdiction which are
ike polyxnmy in their social immor-
Atty and their wrong to the wife.
But We do not rest our conclusion
on this technical argument. II there
were buI = eiusls section In force,
and that the one found In the Cooe
OF Civil Procedure, we rhould hold
tns testimony Of the wife incompe-
tent. We agree with the Supreme
Court Of California, when, In speak
Ing Of their codes, which In respect
70 these sections are identical with
those II Utah, Il says, in People ".
Langtree. (64 Cal 259, 1--WE think
upon fair construction both mean
the same thing. although the Penal
Code Is more explicit than the other.
On this, ~ on nearly every otheI
subject - which the codes relate,
they are simply .declaratory Of whai
the Law would be II there were no
codes" tSee also People vs.. Null.
ings, So Cal. 1857
II was q well-known rule Of the
common law that neither husband
nor wife wAs 3 competent witness in
. criminal action against the other,
except in cases Of personal violence,
the one upon the other, In which
the necessities OF justice compelled
q relaxation Of the ru!e. We are
awsre that language similar 10 this
has been presented to the Supreme
Courts Of several States for consider
alton. Some, as in Iowa aud Ne
braska, hold that a new rule js
thereby established, and that the
wife Is competent witness against
her husband in q criminal prosecu-
ton for bisamy or adultery, on the
ground that those are the crimes
specially against her. Estate vs..
Shan, IS lows, 2l7; Lord VS.. State,
IL Neb. 526.) While others, as In
Minnesota and Texas, hold that by
these words no departure from the
common law rule Is INTENDED. Estate
va. Armstrong, 4 Mimi. 25l; Com
pton Va. State, Is Texas Appeals,
"a; Overton VS.. State, - Texas,
6l6.) This precise question has
never been before this court. but the
common law rule has been noticed
and commended in S.ein vs.. Bow
man, (l3 Peters, 200, DO, In which
Mr.. Justice Mclean used this lang.
uage: 1T Is, however, admitted in
all the cases that the wife is not
competent, except in cases Of vio-
lence upon her person, directly to
criminste her husband, or 10 disclose
that which she has learned from him
In their confidential intercourse. %
"rhis rule Is founded upon the deep
est ani soundest principles Of our
nature, principles which have grown
out OF those domestic relations that
constitute the basis Of civil society,
and which are essential to the en-
joyment Of that confidence which
should suhsist between those who
are connected by the nearest and
dearest relations Of life. To break
down or ioipair the great principles
which protect the sanctties Of hus-
band and wife would be to destroy
the best solace Of human existence
We DO not doubt tie power OF the
legislature to change this ancien:
and well-supported rule; but an in
teption to make such q change
should nos lightly be imputed. 1t
cannot be assumed that II Is indifier-
ent to sacred things, or that 1t means
to lower the holy relations Of hus-
band and wife to the material plane
Of simple contract. So, before any
departure from the rule affirmed
through the ages Il the common
lava rule having its solid founda-
ton in the best interests Of society
can be adiudged, the language de-
claring the legislative will thoulJ
b. 70 clear as TO prevent doubt AZ to
its intent and limit. When a code
Is adopts d, the understanding Il that
such code Is n declaration Of estab-
lished law, rather than an enact.
ment Of new and different rules.
This is the idea Of q code, except as
to matters Of procedure and jurisdic-
ton which often ignore the past,
and require affirmative description.
We conclude, therefore, that the
section quoted from the Code Of
Civil Procedure, IL applicable to a
criminal case, should not he nd
judged as working a departure
from the Old and establish
ed rule, unless its language
demands such con-
Does IL? The clause in
the Civil Code is negative, and de-
Glars that the exception Of the in
competency Of wife or husband as
. witness against the other does not
apply TO . criminal action or pro-
for q crime committed by
one against the other. IL polygamy
such . crime against the wife? That
1t ie no wrong upon her person Is
aud the common law ex-
ception to the silence upon the lips
Of husband and wife was only brJk-
en-, as We have noticed, In cases OF
assault Of one upon the other. That
II is humiliation and outrage to her
b evident. II that Is the test, what
limit II imposed? Is the wife not
humiliated, Is not her respect and
love for her husband outraged and
betrayed, when ne forgets his in
tegrity rs = man and violates any
human or divine enactment Is
she less sensitive, is she less humili-
ated, when he commits murder, or
robbery, or forgery, than when he
polygamy or adultery? A
true wife feels keenly any wrong Of
her husband, aud her loyalty and
reverence are wounded and humiI:-
afed by such conduct But the
question presented by this statute Is |
not how much she feels or suffers,
but whether the crime isOne against |
her. Polygamy and adultery may
be crimes which involve disloyalty
10 the marital relation, hut they are
rather crimes against such relation
than against the wife; and, rs the
statute speaks Of crimes against her,
II is simply an affirmation Of the |
old familiar and just common law
rule. We conclude, therefore. that |
U ndsr this statute the " lie was an
incomIete witness against her !
husband.
Other questions ia the record need
not be considered, rs they Will prob
Ably not arise on new trial.
The Judgment Of the Supreme
Court Of the Territory Of Utah is
reversed. and the case remanded, |
With instructions to orier = new
trial.
True copy.
Test: JAS. ii. McKESSEY,
Clerk Supreme Court, U. 3.
Ogden Burglars.
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