exist which forbid any clerk, messenger or other employe from divulging to any person except the person addressed the contents of a telegraphic message. These statutes do not apply to the production of telegrams in court which may be secured by serving a subpoena duces tecum upon the officer or employe having them in custody.98 The rules of the telegraph company forbidding disclosure of dispatches do not, of course, avail to prevent the production of telegrams when needed in court."9 The subpoena must identify the particular papers required by naming the parties sending or receiving them, the subject-matter and the dates if known.100 But the particularity of the demand and the sufficiency of the language are wholly discretionary with the court. No definite rule can be laid down, But it may be said that the subpoena cannot be used to obtain an indiscriminate production of telegrams not material to the inquiry, and which may, perhaps, be only effectual in disclosing private, social and business matters which every man has a right to conceal. So a grand jury has no power to compel the production of telegrams passing between parties during a period of fifteen months past.1 A telegraph official may be compelled to testify orally to the contents of a dispatch where the writing is lost or its absence is otherwise accounted for.2 § 183. Indecency of the facts to be proved.-Evidence relevant to the guilt or innocence of the prisoner, and which is necessary for Croswell on Electricity, § 437; State v. Sawtelle, 66 N. H. 488, 32 Atl. 831; Storror, In re, 63 Fed. 564, distinguishing Boyd v. United States, 116 U. S. 616, 29 L. ed. 746, 6 Sup. Ct. 524; Brown, Ex parte, 72 Mo. 83, 88, 37 Am. 426, 7 Mo. App. 484; State v. Litchfield, 58 Me. 267; United States v. Babcock, 3 Dill. (U. S.) 566, 24 Fed. Cas. 14484, 3 Cent. Law J. 101; National Bank v. National Bank, 7 W. Va. 544, 547; United States v. Hunter, 15 Fed. 712, 715; Woods v. Miller Co., 55 Iowa 168, 170, 7 N. W. 484, 39 Am. 170; People v. Webb, 5 N. Y. 855. "State v. Litchfield, 58 Me. 267. 100 Jaynes, Ex parte, 70 Cal. 638, 639, 12 Pac. 117; Storror, In re, 63 Fed. 564; United States v. Hunter, 15 Fed. 712, 715. 1 Brown Ex parte, 72 Mo. 83, 94, 37 Am. 426, 7 Mo. App. 484. 2 State v. Litchfield, 58 Me. 267. If the federal government shall take control of the telegraph it is reasonable to assume that the rule by which information in the hands of executive officials is privileged would apply. So, doubtless, Congress now has power by virtue of its control of interstate commerce, of which the telegraph is a component part, to pass such a statute. the purposes of criminal justice, will not be excluded or regarded as privileged, merely because of its indecency. In the trial of certain rare and abnormal crimes caused by a perversion of the sexual instinct, the most shocking revelations of human depravity are frequently met with; while in the frequent criminal prosecutions for abortion, rape, adultery, seduction and bastardy, the evidence is utterly unfit for repetition before a miscellaneous gathering. Though relevant evidence cannot be excluded because of its indecency, it is always in the discretion of the court to exclude from the court-room all persons not concerned in the proceedings, either as jurors, witnesses, counsel, or court officers.3 § 184. Privileged communications between husband and wife.-At common law, neither a husband nor a wife was a competent witness for or against the other in any judicial proceedings, civil or criminal, to which the other was a party. This incompetency, so far as civil actions were concerned, was largely (though by no means wholly) based upon the common law identity of interest in property rights existing between the parties. The rule that excluded a party as a witness because of interest logically excluded another who was merely his or her alter ego. And in criminal trials it was conceived that to permit husband or wife to testify for the other would be to admit a witness who would be sure to perjure himself or herself because of interest. in and bias and friendship for the accused. If either were recognized as a competent witness against the other who was accused of crime, besides the temptation to shield the accused, a very Greenleaf on Ev., § 253; 1 Elliott Ev., 8 647; 2 Elliott Ev., § 818. * Cases cited in Underhill on Ev., § 166; State v. Smith, 5 Pen. (Del.) 1, 57 Atl. 368; Finklea v. State (Miss. 1909), 48 So. 1; State v. Wooley, 215 Mo. 620, 115 S. W. 417; Baker v. State, 120 Wis. 135; 97 N. W. 566. Where the wife is incompetent to testify against her husband, the testimony of the third person as to her declarations in the presence of her husband is not admissible against him. State v. Richardson, 194 Mo. 326, 92 Greenl. on Ev., § 334; 2 Best on Ev., § 586. Under a statute permitting husband or wife to testify in a prosecution for a crime committed by one against the other the crime must have been committed while the relation of husband and wife existed. A wife cannot testify against her husband on a prosecution for rape committed by him on her prior to marriage. State v. McKay, 122 Iowa 658. 98 N. W. 510. serious injury would be done to the harmony and happiness of = husband and wife and the confidence which should exist between them. In other words, the common law incompetency of the husband and wife as witnesses in criminal trials arose mainly from considerations of public policy having respect to the confidential nature of the marital relation, and the interest which the public have in the preservation of domestic peace and confidence between married people. Under the rules of the common law a wife is not competent to testify for her husband in a prosecution for violating a municipal ordinance, since such a proceeding is subject to the rules of evidence governing criminal proceedings.' § 185. Husband and wife as witnesses in criminal proceedings.— At the common law a wife is never a competent witness for her husband in a criminal trial, though she may, in one or two exceptional cases, be a competent witness against him. The incompetency of the husband or the wife to testify for the other, where either is tried for a crime committed upon some third person, is sometimes confirmed by statute." A husband or wife may, if willing to do, testify against each other without the consent of the other though there is a statute providing that neither shall be compelled to testify against the other.1o man, 15 S. Car, 540, 546; Merriwether v. State, 81 Ala. 74, 1 So. 560; People v. Reagle, 60 Barb. (N. Y.) 527, 547; Lucas v. State, 23 Conn. 18, 20; Elmore v. State, 140 Ala. 184, 37 So. 156; State v. Vaughan (Mo. App. 1909), 118 S. W. 1186; Wesoky v. United States, 175 Fed. 333. "United States v. Bassett, 5 Utah * Turpin v. State, 55 Md. 462, 477; Stapleton v. Crofts, 83 End. C. L. 367, 369; Lucas v. Brooks, 18 Wall. (U. S.) 436, 453, 21 L. ed. 779; Steen v. State, 20 Ohio St. 333; United States v. Jones, 32 Fed. 569, 570; Williams v. State, 44 Ala. 24; Lucas v. State, 23 Conn. 18, 20; Taulman v. State, 37 Ind. 353, 355. 'Barron v. Anniston (Ala. 1908), 48 131, 13 Fac. 237; State v. Parrott, 79 N. Car. 615, 617; Johnson v. State, 27 Tex. App. 135, 11 S. W. 34; People v. Gordon, 100 Mich. 518, 519, 59 N. W. 322. The privilege of silence may be claimed by the accused as well as by the witness. People v. Wood, 126 N. Y. 249, 264, 27 N. E. 362, 36 N. Y. St. 952. V. Barker, 185 So. 58. 8 Turpin v. State, 55 Md. 462, 475; Randall's Case, 5 City Hall Rec. (N. Y.) 141, 153; State v. Wright, 41 La. Ann. 600, 603, 6 So. 135; State v. Pain, 48 La. Ann. 311, 19 So. 138; Hussey v. State, 87 Ala. 121, 135, 6 So. 420; Johnson v. State, 27 Tex. App. 135, 11 S. W. 34; State v. Work 10 Commonwealth A statute declaring in general terms that a husband or a wife is competent as a witness11 in an action for or against the other. or a statute which removes the common law incompetency of interested persons as witnesses in civil proceedings (and even in criminal proceedings) will not be effective to make husband and wife a competent witness against the other in a criminal trial.12 An exception is made on the trial of the husband for a personal injury inflicted by him on his wife, and she is permitted to testify against him. Such an exception is absolutely necessary to promote justice and to protect the wife from violence at the hands of her husband in circumstances where, from the relation and surroundings of the parties, no third person could be present.13 It is the policy of the law to extend the right of the wife to testify against the husband in such cases. "See People v. Reagle, 60 Barb. (N. Y.) 527, 547; Wilke v. People, 53 N. Y. 525, 526. 12 State v. Evans, 138 Mo. 116, 39 S. W. 462, 60 Am. St. 549; Steen v. State, 20 Ohio St. 333, 334; Turpin v. State, 55 Md. 462, 477; United States v. Crow Dog, 3 Dak. 106, 14 N. W. 437. Cf. Everett v. State, 33 Fla. 661, 673, 15 So. 543; State v. Orth, 79 Ohio St. 130, 86 N. E. 476; Bryan v. State (Tex. Cr. App.), 114 S. W. 811. The incompetency is based on public policy, not on interest on the action. Burrell v. Bull, 3 Sandf. Ch. (N. Y.) 15; Knowles v. People, 15 Mich. 408, 413; Dixon v. People, 18 Mich. 84, 92. Cf. People v. Fultz, 109 Cal. 258, 41 Pac. 1040; State v. Reynolds, 48 S. Car. 384, 26 S. E. 679. 13 I Bl. Com. (Brown) p. 655; I East P. C. 455; Lord Audley's Case, 3 How. St. Tr. 401, 402; 1 Whart. Cr. L., § 767; State v. Sloan, 55 Iowa 217, 220, 7 N. W. 516; State v. Bennett, 31 Iowa 24; United States v. Bassett, 5 Utah 131, 13 Pac. 237; Bramlette v. State, 21 Tex. App. 611, 718, 2 S. W. 765, 57 Am. 622; Baxter v. State, 34 14 Tex. Cr. App. 516, 31 S. W. 394, 53 Am. St. 720; Whipp v. State, 34 Ohio St. 87, 89, 32 Am. 359; Navarro v. State, 24 Tex. App. 378, 6 S. W. 542; State v. Pennington, 124 Mo. 388, 391, 27 S. W. 1106; People v. Chegaray, 18 Wend. (N. Y.) 637, 642; Turner v. State, 60 Miss. 351, 354, 45 Am. 412; United States v. Smallwood, 5 Cranch C. C. (U. S.) 35, 27 Fed. Cas. 16316; 1 Russell on Crimes (9th Am. Ed.) 948; People v. Carpenter, 9 Barb. (N. Y.) 580-584; State v. Dyer, 59 Me. 303, 307 (abortion); Commonwealth v. Kreuger, 17 Pa. Co. Ct. 181; State v. Boyd, 2 Hill (S. Car.) 288, 27 Am. Dec. 376n; People v. Houghton, 24 Hun (N. Y.) 501; People v. Hovey, 29 Hun (N. Y.) 382, 389; Rex v. Jagger, 1 East P. C. 455 (attempt to poison wife). This exception is recognized, even if other witnesses testify to material facts. Bentley v. Cooke, 3 Doug. 422; Taulman v. State, 37 Ind. 353, 355; State v. Vaughan (Mo. App. 1909), 118 S. W. 1186. 14 People v. Sebring, 66 Mich. 705, 707, 33 N. W. 808. In all cases where The dying declarations of a wife are always competent on a trial of her husband accused of her homicide, and may be used for or against him.15 Where a husband and wife are jointly indicted for the commission of the same crime, the confession of the wife may be received against the husband so far as it admits or suggests his guilt. The statute excluding privileged communications between husband and wife does not render this evidence inadmissible; the same rule would apply to the confession of a husband implicated with his wife in a crime against a third person.16 In all cases where the statute permits a husband or wife to testify against the other in a criminal trial, the credibility of the husband or wife thus testifying is to be considered and determined by the same rule which applies to other witnesses. The fact of the relationship of the witness to the accused may be considered as bearing upon his or her credibility, but this relationship should not cause the evidence of the witness to be regarded with suspicion or scrutinized with more than ordinary care.1 § 186. Statutory competency of husband and wife.-The competency of a husband or wife as a witness for or against the other is now, to a large extent, if not altogether, regulated by statute in this country. The general effect of this legislation has been to render the husband or wife competent in civil cases by remov a wife may testify against her husband she may, with equal reason, testify for him. State v. Patterson, 2 Ired. (N. Car.) L. 346, 355, 38 Am. Dec. 699; State v. Neill, 6 Ala. 685, 686; People v. Fitzpatrick, 5 Park. Cr. 26, 28; Com. v. Murphy, 4 Allen (Mass.) 491, 492; Rex v. Serjeant, 1 Ry. & Mood. 352, 3 Russ. on Cr. (9th Am. Ed.) 633. The question usually arises where the wife is a witness. The exception is also recognized where the husband is a witness for or against the wife. Whipp v. State, 34 Ohio St. 87, 89, 32 Am. 359; State v. Davidson, 77 N. Car. 522, 523, as in the case of an assault by the wife on the husband. State v. Harris, |