Deseret evening news. [volume] (Great Salt Lake City [Utah]) 1867-1920, 1890-12-11

II
The contention by public prosecu
tors has been that a sexual ofienss
by the husband. for instance bigamy
or polygamy, was a crime com
mitted by the husband against thu
wife, and that thus the common
law rule was set aside by this pro-
vision OF the Utah statute.
The Code Of Criminal Procedure,
however, provides that.
Section 42l-"Eceept nth the consent
of6oih, or IN cases Of criminal rioteno,
upon one by the other, aeitker husband
nor rife are competent witnesses for OF
against each other. ia a criminal action
orproceedins 10 iriieh one or both urs
parties"
Mr.. Richards argucd that these
two provisions o. the statutes do not
conflict with each other, and that
both are in harmony with the com.
mon law. That the latter provision
does not repeal the former. That
all must be construed together. That
they are IN pan 8iateria. That they
evidently mean the same thing, and
that is, an offence committed by one
upon the person Of the other, such
as an assault, or any criminal vio-
lence, ami were intended for mutual
personal protection. And as in this
case the appellant was not accused
of such an offense, polygamy
being not Of that character, his
wife was an incompetent witness.
Numerous authorities were cited in
support of this view. And to show
that it is correct as TO bigamy and
polygamy, counsel quoted from
The People vs.. Houghton. a case Of
oigamy in which the wife was per
nitted to testify against her hus-
band, but the appellate court held
that the wife was incompetent, and
aid:
by the rules Of evidencs prevalent
At common law, neither husband nor
wife is permitted to testify for or
against each other in any action civil OF
criminal. The rule has its foundation
in the identity of their rights and con-
Germs, the interest of civil society, and
the sanetiIies of the marriage re-
iaiion, and il is enforced by the courts
with much strictncss. Some exccp-
lions there are where the wife would
otherwise be exposed to personal in
jury without remedy
In the case Of the State vs.. Arm
strong, MINI. a5s, under \ statute
-imiiar to OUTS, in a prosecution for
idulsery, Mr.. Richards showed, the
court held that the wife was not n
competent witness and explained
he rule as follows:
'Tbe statutes only allow the wife TO
testify against the husband, or the
husband against the wife, without the
consent Of the one against whom the
testimony is offered. in a criminal
tciion OF proceeding for a crime COM
nitted by one against the other
FMS exception is inserted simply to
ave those cases where. at common
law, wife could be witness agains,
her husband, or husband against his
wife, and not introduce any new rule,
or extend the old one. Mr.. Greenleaf.
in his work on evidence, vol. l, 3i3,
says that these exceptions are allowed
partly for the protection of the wife
IN her life and liberty. and partly for
he sake Of public justice. But the
ienes-ity which calls for this exception
Tor the wife's security, is described to
mean, not n general necessity, as
where no other witness can be had,
but particular necessity, as where. for
instance. the wife would be exposed,
without remedy, TO personal INJURY
In support Of the contention that |
even should il be held that under
he Utah statute Mrs. Bassett was q
witness because the
Ddence OF her husband was
,olygamy. yet it was error to permit |
ler to disclose a confidential COM
nunication, Mr.. Richards cited |
on Criminal Evidence:
Section 3ss. Confidential COM
between husband and
wife are so far privileged that the law
20 permit either to be interro-
gated rs 10 what occurred in their con-
i feniial Intercourse during their
martial relations, covering, therefore,
by silence as well as ad-
MISSIONS by words.''
Also Greenleaf on Evidence:
section 25i. Communications be-
ween husband and wife belong also
o the class of privileged communica-
ions, and are therefore protected in
ieDendently Of the ground of interest
nd identity, which preclude the
',rties from testifying for or against
ach other.- Il
Therefore. after the parties are
whether it be by divorce or
y death OF the husband, the wife is
ill precluded from disclosing any
with him, though she
lay be admitted to testify to facts
-hich came 10 her knowledge by
leans equally accessible 10 any par-
IN not standing in that relation
Counsel closed this part Of the
-gument by submitting that s'The
ravity Of the charge against the
aintiff in error and the extreme .
snalty imposed upon him, the ,.
ter absence of all testimony tend.
9 to establish guilt, except the al ,.
gel confession testified to by his
life, and the strained construction
the statute which is claimed by .
e prosecution to abrogste n long
abolished and well settled rule OF
v, all unite in appealing to the .
lnd judgment Of the Court for q 3
let adherence to its former de- "
ions, which have ever preserved
violate the sublime rule for which a
now eontend.. IL
10 regard to the juror Andrew 81
rson, who was challenged Oh the ~
'und that he had been a poly. p
mist, the objection being over ' '
ed, it was shown the Court was in "
or because the Edmunds Act pro. Y
les in Section :. "