ing any disqualification either may have been under because of the merger of the legal personality of the wife into that of the husband. This principle applied in civil cases only, and in such cases a husband or wife is now competent as a witness to the same extent as any other person with this exception (which is recognized in all the states which have legislated upon the subject), that neither can be permitted to disclose confidential communications which passed between them during coverture.18

The rule of the statute is applicable to confidential communications which are contained in letters or other writings as well as to those which are of an oral nature. Hence, it follows that letters passing between husband and wife are inadmissible against either of them on trial for a crime where by accident or design they have been delivered by the person who received them to the prosecuting official.19 But it must appear, to bring the case under the statute, that the letters or writings contained something of a confidential nature. This fact is to be determined by the reading of the writing itself, and is a preliminary question for the court. If the communication in writing is not confidential per se, it cannot be made so by the accused claiming that he wrote it in confidence. The mere objection that the writing is confidential will not exclude it if the court shall decide otherwise.20

It seems that a written communication from a husband to his wife may lose its privileged character by her letting it go out of her hands. The writing is no longer confidential if both husband and wife have relinquished control over it."1

21

§ 187. Confidential communications between husband and wife.— The statutory rule forbidding a husband or wife to disclose confidential communications made during marriage is applicable to criminal trials. Where the statute declares in express language that "the husband or wife cannot be compelled to disclose confidential communications," either may do so voluntarily if the other consents thereto, though the privilege is absolute and

21a

15 See Underhill on Ev., § 167; Cole v. State, 48 Tex. Cr. App. 439, 88 S. W. 341. Comprehensive notes on questions of competency of husband or wife to testify for or against each other in criminal proceedings, 24 Am. St. 663, 106 Am. St. 763-770.

St. 538, 70 Atl. 865; Hearne v. State, 50 Tex. Cr. App. 431; 97 S. W. 1050. 20 Caldwell v. State, 146 Ala. 141, 41 So. 473

21 State v. Buffington, 20 Kan. 599, 614, 27 Am. 193.

a Emmons v. Barton, 109 Cal. 662,

10 Commonwealth v. Fisher, 221 Pa. 42 Pac. 303; Southwick v. Southwick,

cannot be waived if the statute declares the communication to be incompetent.22 Where a communication is not confidential (and this will be presumed where it was made to a third person by the husband or wife in the presence of the other23), or where a third person is present, or is concealed and overhears an interview between husband and wife, it will not be privileged,24 and the third party or the husband or wife may testify to what was said. But sometimes it has been held that a communication need not be expressly confidential to be privileged,25 and this certainly is the rule when the statute refers to all communications made. during marriage.20

Under such a statute by which all communications made during the marriage relation are excluded; either party may testify as to the fact of marriage or as to any other fact which is not contained in a communication passed between the parties.27

A conversation between husband and wife is no less confidential because children were present who took no part in it.28 The cessation of the marital relation by annullment, divorce or death will not let in a confidential communication made while it existed.

2 Sweeny (N. Y. Super.) 234. Thus, a confession by a wife to her husband that she has committed incest, extorted by his threats to leave her, and its repetition, under similar threats, to a third person, in her husband's presence, are confidential communications and incompetent. State v. Brittain, 117 N. Car. 783, 23 S. E. 433. Cf. ante, $8 173, 174.

22

Commonwealth V. Cleary, 152 Mass. 491, 25 N. E. 834; Head v. Thompson, 77 Iowa 263, 42 N. W. 188. The prosecutor in a trial for an assault cannot be compelled to state whether or not he told his wife that the accused had acted in self-defense. The law regards such a communication as confidential and will not compel its disclosure. Murphy v. Commonwealth, 23 Gratt. (Va.) 960, 965. "Commonwealth V. Griffin, 110 Mass. 181; Mainard v. Reider, 2 Ind. App. 115, 28 N. E. 196.

24 Commonwealth V. Griffin, IIO Mass. 181; Reynolds v. State, 147 Ind. 3, 46 N. E. 31; State v. Center, 35 Vt. 378; People v. Lewis, 62 Hun (N. Y.) 622, 16 N. Y. S. 881, aff'd in 136 N. Y. 633, 32 N. E. 1014, 49 N. Y. St. 913, and Underhill on Ev., § 168.

25 Commonwealth V. Hayes, 145 Mass. 289, 293, 14 N. E. 151; Howard v. Commonwealth, 118 Ky. 1, 80 S. W. 211, 81 S. W. 704, 25 Ky. Law 2213, where a wife was not permitted to testify to the identity of a letter from her husband.

A divorced husband or wife cannot testify to an adulterous act by either, or any other fact occurring during coverture.

30

The termination of the marriage relation permits either party thereto to testify thereafter against the other party as to any incriminating fact occurring after the termination of the marriage.3 This would be the effect of a decree of divorce but not of a mere separation by decree or otherwise, for it is well settled that separation and non-cohabitation, either by agreement or by a decree of a court of competent jurisdiction, do not remove the restriction that a husband and wife shall not testify against each other on a criminal trial.3

31

An appeal from a decree of divorce does not prevent the decree from putting an end to the marriage relations as of the date of its entry. Though an appeal has been taken, either party may testify on a criminal trial against the other as to all facts arising after the decree,32

It is not always necessary to produce the decree of divorce to show that the witness has become competent. The question being a collateral question, the rule of the best evidence does not apply and the witness may testify that she was divorced from the accused and may also tesify to the date of the divorce.

The fact that she has been divorced may be implied as where, for example, in a homicide case a witness testifies orally that she is the widow of the victim of the homicide. Upon such a statement by a woman in a Kentucky case, it was held that she might, in the absence of evidence to the contrary, be presumed to

ful and defiant declaration by a husband to his wife of his misconduct, and of his intention to openly persist in it, accompanied by insolent and brutal threats, is not a confidential communication. Seitz v. Seitz, 170 Pa. St. 71, 32 Atl. 578.

State v. Jolly, 3 Dev. & B. (N. Car.) 110, 113. How far this case, which expressly assumes all marital transactions to be confidential, would apply where the statute restricts the privilege to confidential communications, is by no means certain. A divorced husband is competent to prove

have been divorced from her former husband before her marriage to the deceased.33

And either party to the marriage relation after the death of the other may testify to facts which he or she learned from other sources and not by reason of such relations.

In all cases where the question of the competency of the wife of the accused to testify against him arises, the court should decide against the competency of the witness if it has a reasonable doubt on that point.34

§ 188. Husband or wife of co-defendant as a witness for or against his associate in crime-Testimony of husband or wife on trial of a third person tending to criminate.-Whether a husband or wife is competent to testify as a witness upon the trial of a third person for a crime (where the spouse of the witness is not a party to the record), if his or her testimony may incriminate the other party to the marriage relation, is a question which was formerly much discussed. It was at one time almost universally held that such evidence, though it only tended to incriminate collaterally and in connection with other circumstances, was inadmissible. But the rule is now well settled that this evidence is to be received, not only as to those facts which, though innocent in themselves, constitute links in a chain of proof which will implicate the husband or wife of the witness, but also as to those facts which are directly incriminating,35 always provided the spouse of the witness is not a party to the record.

Where several persons, jointly indicted for the same crime, are tried together, a different rule applies. Then the husband or wife of no one of them is a competent witness for,38 or

33 Tompkins v. Commonwealth, 117 Ky. 138, 77 S. W. 712, 25 Ky. Law 1254.

Maule & Selw. 194; State v. Welch, 26 Me. 30, 45 Am. Dec. 94; Commonwealth v. Gordon, 2 Brewst. (Pa.)

34 Porter v. United States, 7 Ind. 569; State v. Bridgmen, 49 Vt. 202, Terr. 616, 104 S. W. 855. 209, 24 Am. 124. But compare State v. Gardner, 1 Root (Conn.) 485; State v. Wilson, 31 N. J. L. 77.

3 Commonwealth v. Sparks, 7 Allen (Mass.) 534, 543; Pruett v. State, 141 Ala. 69, 37 So. 343; State v. Dudley, 7 Wis. 664, 668; State v. Marvin, 35 N. H. 22; State v. Briggs, 9 R. I. 361, 11 Am. 270; Rex v. All Saints, 6 23-UNDERHILL CRIM. EV.

38 Rex v. Frederick, 2 Stran. 1095; Rex v. Locker, 5 Esp. 107; Commonwealth v. Easland, 1 Mass. 15; Commonwealth v. Robinson, I Gray

37

38

against, any co-defendant. Thus, for example, where two or more are indicted for a conspiracy, the wife of none of them can testify against the others if the evidence connects her husband with the common plan or scheme.3 But this rule of exclusion should be thus qualified. The wife of a co-defendant is only excluded in cases where the defendants are jointly tried, or where, though separately tried, the nature of the crime charged is such that the acquittal of one defendant would exonerate her husband, as in riots and conspiracies, in which the participation of two or more is necessary to constitute a crime."

39

Hence, where several are indicted for a crime which could have been committed by one person, as well as by several, the husband or wife of either may testify for or against an accomplice, jointly indicted, but only when his or her spouse is not a party to the record. And generally where a wife may testify against an accomplice of her husband because, under the circumstances, her testimony will not injure the latter, she may testify for him, when he is separately tried.*

40

(Mass.) 555, 560; Moffit v. State, 2 Humph. (Tenn.) 99, 101, 36 Am. Dec. 301; Mask v. State, 32 Miss. 405, 410; State v. Smith, 2 Ired. (N. Car.) 402, 405; Woodward v. State, 84 Ark. 119, 104 S. W. 1109; State v. Sargood, 77 Vt. 80, 58 Atl. 971.

37 Whart. Crim. Ev., § 391; Woods v. State, 76 Ala. 35, 37, 38, 52 Am. 314; Rex v. Smith, 1 Mood. C. C. 289; Dill v. State, I Tex. App. 278, 283. Contra, State v. Adams, 40 La. Ann. 213, 3 So. 733.

$8

Johnson v. State, 47 Ala. 9; Rex v. Smith, I Mood. C. C. 289; United States v. Hanway, 2 Wall. Jr. (U. S.) 139, 26 Fed. Cas. 15299, 4 Am. Law J. (N. S.) 458.

39 Workman V. State, 4 Sneed. (Tenn.) 425; Moffit V. State, 2 Humph. (Tenn.) 99, 101, 36 Am. Dec. 301. The wife of one of several defendants indicted jointly for a conspiracy is competent against the conspirators other than her husband

41

when he has pleaded guilty. Graff v. People, 108 Ill. App. 168.

I Greenl. on Ev. 335; Commonwealth v. Manson, 2 Ashm. (Pa.) 31. Against an accomplice, State v. Dyer, 59 Me. 303; State v. Anthony, 1 McCord (S. Car.) 285; Smith v. Commonwealth, 90 Va. 759, 19 S. E. 843: People v. Langtree, 64 Cal: 256, 30 Pac. 813; Moffit v. State, 2 Humph. (Tenn.) 99, 101, 36 Am. Dec. 301; Grimm v. People, 14 Mich. 300; Bluman v. State, 33 Tex. Crim. App. 43, 21 S. W. 1027, 26 S. W. 75; State v. Goforth, 136 Mo. 111, 37 S. W. 801; State v. Rainsbarger, 71 Iowa 746, 31 N. W. 865; State v. Wright, 41 La. Ann. 600, 603, 6 So. 135. Contra, State v. Smith, 2 Ired. (N. Car.) 402, 405; Munyon v. State, 62 N. J. L. 1, 42 Atl. 577; Smartt v. State, 112 Tenn. 539, 80 S. W. 586; State v. Smith, 5 Penn. (Del.) 1, 57 Atl. 368.

"Powell v. State, 58 Ala. 362; Moffitt v. State, 2 Humph. (Tenn.) 99, 35