Richmond dispatch. [volume] (Richmond, Va.) 1884-1903, 1894-06-26
HUSBAND AND WIFE.

| HUSBAND AND WIFE.
The Law Making Them witnesses Against
Ono Another In Certain Csses.
PETERSBURG. VA, June %. 1884,
To the Editor OF the Dispatch:
sir.-As the act recently passed by the
General Assembly was drawn, and as Il
was reported 20 the House from the Com
mittee on Courts OF Justice. It's title read.
"A bill to make husband and wife COM
petent witnesses for or against each other
in certain cases. blouse bill No 500
AS published in the Acts OF Assembly
OF 1864, the title II AN act to make hus-
band and wife competent witnesses for
or against each other In civil cases"
The transformation was wrought thus:
a bill making husband and wife compe-
tent witnesses In all civil action and
proceedings was passed by the Senate.
Senate bill No. 81 The House Committee
on Courts OF Justice was unwilling 10
adopt such a sweeping change and re-
ported Senate bill No. 8. with the re-
commentator that II do pass. II directed
favorable report on House bill No. so
(Which applied TO both civil and criminal
visions that bill contained when intro
duced. When the Senate bill. No. 9. came
up In the House i offered House bill, No.
$780, thus reported 0he present acD, az a
substitute and the substitute passed the
House. and was subsequently agreed 10
by the Senate The title OF the Senate
BILL however. which related to civil cases
only. was not amended. and the act was
published with Its present title.
u tn ~
bill as a substitute for the Senate bill
In order to get 1t before the House. 1t
would never have been reached in It's
regular order upon the House calendar.
In view OF these circumstances. and OF
the recent decision. as reported I'm the
Dispatch. Of the Judge OF the Circuit
Court OF Richmond city, holding the act
to be unconstitutional in It's application
10 civil cases the following letter OF Judge
T.. c. Burks. which give for publication,
OF course with his permission. and with
the permission OF the Hon. Randolph Har-
rison. 10 whom II is addressed will be OF
interest The letter Is given in full. with
the exception OF a personal allusion TO
me:
BEDFORD CITY. VA. May 2, 1894.
"Hon. Randolph Harrison:
my Dear Sir-I received yesterday
your letter of the day before.
III the act is correctly enrolled there
can be dopbt that the second section ire
lating TO criminal cases. Is void. But
suppose, as matter Of fact. the McRae
bill dhe present acD was drawn with the
title prefixed containing the words seer
tain cases" II came to me in that form.
If IL was offered In that form as the sub
stitutc for the Senate bill, and actually
passed In that form, then II was impro-
perly enrolled. The question would then
he oil
by construction? This involves the fur
Their question. Whether proof can be re,
ceived TO show the error? 7 apprehend
that no such proof by mere paroI evil
dence would be admissible. But suppose
the Journal Of the House dscloses the
error. Could not the Journal be looked
to and considered in determining whether
there was error in the enrolment / am
rather inclined TO think so. do not
know. however what the Journal states
as 10 this matter, but rather suppose 1t is
silent as TO form OF substitute
Assuming that the title, at all events
Is sufficient so far as the first section is
concerned, there is the further question,
suggested by you, whether 1t is
necessary, under the Constitution
that the former act should have been ex-
pressly amended. and as amended re-en-
acted and published at length. Since /
wrote you last | have revolved this mat
ter in my mind and am pretty well salts
fed myself that the failure to re-enact
the former statute Code provisions as
amended was not necessary, though II
might have been more appropriate and
safer to do so. do not remember whether
/ referred you 10 any authorities on this
subject. but / give you reference now
see % Am. and Eng Encyc. OF Law title
Statutes on page go, and notes. have
not access to all the authorities cited by
the author In note C) in support OF the
text. | have. however. American decl-
sons O8 Graft. and S w. Va), cited. The
case in IS Graft. has strong bearing and
w. Va. is more directly in point. The
reasoning Of the Michigan court in People
VS. Mahaney. quoted from, is very per-
suasive and. indeed, convincing. Ii will be
observed. too. that section 33i6 OF the
Code rs mere qualification OF the pre-
cedng section $3.50. and the first para
graph operates as an exception as to hus
band and wife and some others leaving
the former law In force as to them. The
effect Of the new act and it's object is
not. In strict sense. to amend these
Code provisions, but TO enact a general
rule as TO husband and wife. The act ic
an independent one, complete and per-
feet in itself, and its effect is to repeal
mot amend the former statute as to the
exception contained in It in respect to hus-
band and wife witnesses for or
against each other. ! cannot but think
this must be so. This view Is strongly
supported by the Courts opinion in the
West Virginia case cited supra. If this
view be not correct, and in every case I'm
which new statute Is enacted which con-
fiicts with a former statute or statutes,
IL is necessary that the latter be re-en-
acted with the changes incorporated.
acf p1ep al
how long would ii take before the statute
law OF the state would be in such state
of confusion that II would be next TO inn
possible TO determine what II Is? l can
imagine cases in which a general statute
would affect a dozen. or Indeed score
or more, Of sections in the Code. To say
that all of these sections must be seve-
rally and specifically amended and re-
enacted would be reductio ad absurdum.
The trainers Of the Constitution could not
reasonably be presumed 10 have contem-
plated this.
Every truly yours, II. c. BURNS.
While. from my standpoint 1t would be
matter for regret that the effect or thls
act or any OF It's provisions should be de-
layed or defeated by defect OF form or
irregularity In enactment, still / am glad
10 believe that the principle which II
embodes has been fixed in our law, and
that any necessary amendment OF form
will be made hereafter. / think II VIII
be regarded by the legal profession gene
rally as step In the direction or an
enlightened administration OF justice.
Similar statutes have been passed by
thirty-three of the United States. In
Guiding every Southern state. except Ken
tucxy and Alabama, and including the
States of Massachusetts,, New York. ana
Pennsylvania: and England herself, the
mother of the common law, mas many
years since done away with the common
law restrictions upon the competency OF
husband and wife as witnesses.
w. +. MRAE.
~. nr.,