benefited. The question was reserved, and all the judges, except Graham, B., and Littledale, J. (who seems to have changed his opinion), thought the evidence rightly rejected. Four years afterwards, the case of R. v. Hood, 1 Moo. C. C. 281, was reserved. Under what precise circumstances the evidence was tendered does not appear, but the person who was tendered was the wife of a man who, though implicated in the offence, was not included in the indictment. But this distinction seems to have been overlooked, and the court refused to allow the point to be argued, saying that it was concluded by R. v. Smith, supra. So where upon an indictment against Webb and three other prisoners for sheep-stealing, the counsel for the prosecution proposed to call the wife of Webb to prove facts against the other prisoners, and urged that it was only in cases where the acquittal or conviction of one prisoner had a direct tendency to *cause the acquittal or conviction of the other prisoners that *127] the wife of one prisoner was incompetent to give evidence for or against the other prisoners, Bolland, B., held that the witness was incompetent. R. v. Webb, Glouc. Spr. Ass. 1830, 3 Russ. Cri. 622, 5th ed. In R. v. Sills, 1 C. & K. 494, 12 E. C. L., where A. and B. were indicted for burglary, and a part of the stolen property was found in the house of each of the prisoners, Tindal, C. J., allowed the wife of A. to be called on behalf of B. to prove that she took to B.'s house the property which was found there. But it seems very difficult to reconcile this decision with that of R. v. Smith, which was not referred to indeed, the matter was not at all discussed. In R. v. Thompson, L. R. 1 C. C. R. 377; 41 L. J. M. 112, three prisoners were on their trial, two for larceny and one for receiving; and it was held that the wife of one of the two could not be called to give evidence for the one charged with receiving, although the charge against him was contained in a separate count. By far the greater preponderance of authority is, therefore, in favor of the proposition, that in no such case, where the husband is on his trial, can the wife be called as a witness, and vice versa. See also post, p. 132.

1

Where husband or wife is not indicted, but implicated. Where the guilt of the husband or wife is not the subject of inquiry, though they may have been implicated in the transaction, then the question assumes a different aspect, and a different class of considerations is applicable. The witness, in this case, is not incompetent, and all that he or she can do is to refuse to answer certain questions. There is only one case in which the witness was held in such a case to be not competent, that of R. v. Cliviger, 2 T. R. 938, but this is now no

1 Commonwealth v. Eastland, 1 Mass. 15. That the wife of one is a material witness for the other, is a sufficient ground for a separate trial. Id. Case of Shaw et al., 1 Rog. Rec. 177. See People v. Colburn, 1 Wheel. C. C. 479; State v. Anthony, 1 McC. 285. Whether the trial be joint or separate, one defendant in an indictment cannot, until finally discharged, be a witness for another, and whenever the wife of one is not permitted to testify for the others on a joint trial, she will not be received for them, although her husband be not then on trial. State v. Smith, 2 Ired. Law, 402, S.

longer law.

To what protection the husband or wife is entitled will

be found discussed at p. 153.

In cases of treason.

Whether or not the wife is a competent witness against her husband on a charge of treason appears to be doubted. In R. v. Grigg, T. Raym. 1, which was an indictment for bigamy, it is said obiter, that a wife could not be a witness against her husband except in treason; but, on the other hand, it has been asserted that a wife is not bound, in case of high treason, to discover her husband's treason; Brownl. Rep. 47; and there are many authorities to the same effect which appear to settle the point. 1 Hale, P. C. 301; Hawk. P. C. b. 2, c. 46, s. 182; Bac. Ab. Evid. (A. 1). See 2 Stark. Ev. 554, 3rd ed.; 3 Russ. Cri. 626, 5th ed.; 1`Phill. Ev. 72, 10th ed.; Best, Ev. 229.

Cases of personal violence. It is quite clear that a wife is a competent witness against her husband, in respect of any charge which affects her liberty or person. Per Hullock, B., R. v. Wakefield, 2 Lewin, C. C. 1,279; 1 Deac. Dig. C. C. 4; 3 Russ. Cri. 625, 5th ed. Thus, in R. v. Lord Audley, who was tried as a principal in the second degree, for a rape upon his own wife; the judges resolved that though, in a civil case, the wife was not a competent witness, yet that in a criminal case of this nature, being the party grieved, upon whom the crime is committed, she is to be admitted as a witness against her husband. 3 How. St. Tr. 402; 1 Hale, P. C. 301. So on an indictment against the husband for an assault upon the wife. R. v. Azire, 1 Str. 633; B. N. P. 287. So a wife is always permitted to swear the peace against her *husband, and her affidavit has been permitted to be read, on an application to the Court of King's Bench, for an information [*128 against the husband, for an attempt to take her away by force, after

1 A wife cannot testify in matters tending to criminate her husband, who is jointly indicted with another person, but is not brought to trial. State v. Bradley, 9 Rich. Law, 168. The testimony of a wife, the only tendency of which is to discredit her husband, is not admissible. Keaton v. McGwier, 24 Ga. 217. S.

She is competent to contradict her husband when a witness for the State in a charge of assault against himself. State v. Parrott, 79 N. C. 615.

Trever's Case, 1 Rog. Rec. 107; Resp. v. Hevice et al., 2 Y. 114: Soulis's Case, 5 Greenl. 407; Wiggin's Case, 2 Rog. Rec. 156; State v. Boyd, 2 Hill, 288. [But see Wheeler v. Wheeler, 47 Vt. 637. The violence must threaten lasting injury or the testimony is not competent. State v. Davidson, 77 N. C. 522.] A wife can be a witness against her husband in a criminal proceeding, only when he is charged with committing or threatening an injury to her person. Upon an indictment against her husband for using criminal means, subornation of perjury, to wrong her in a judicial proceeding, she cannot be a witness against him. People v. Carpenter, 9 Barb. 580. The oath of a married woman will not sustain a warrant for the arrest of her husband for adultery; nor can a husband be a witness in a case against his wife for adultery. Commonwealth v. Jailer, 1 Gr. Cases, 218; State v. Berlin, 42 Mo. 572. In the trial of a complaint against a man for an assault and battery upon his wife, she is a competent witness in his favor. Commonwealth v. Murphy, 4 Allen, 491. Wife is competent against husband on charge of procuring a miscarriage. State v. Dyer, 59 Me. 303. As to the effect of the statute on husband and wife as witnesses: Steon v. State, 20 O. St. 333. S. Schultz v. State, 32 Ohio St. 276.

Both husband and wife are competent witnesses in an indictment for an offence committed against the other, and may be compelled to testify. Bramlette v. State, 21 Tex. App. 611.

articles of separation. Lady Lawley's case, B. N. P. 287. Upon an indictment under the repealed statute, 3 Hen. 7, c. 2, for taking away and marrying a woman contrary to her will, she was a competent witness to prove the case against her husband, de facto. R. v. Fulwood, Cro. Car. 488; R. v. Brown, 1 Vent. 243; R. v. Naagen Swenden, 14 How. St. Tr. 559, 575. And she was consequently a witness for him. R. v. Perry, coram Gibbs, C. J., 1794; Hawk. P. C. b. 2, c. 46, s. 79, cited Ry. & Moo. N. P. C. 353. But a doubt has been entertained, whether, if the woman afterwards assent to the marriage, she is capable of being a witness. In R. v. Brown (supra), it is said by Lord Hale, that most were of opinion that, had she lived with him any considerable time, and assented to the marriage by a free cohabitation, she should not have been admitted as a witness against her husband. 1 Hale, P. C. 302. But Mr. Justice Blackstone, in his Commentaries, has expressed a contrary opinion. 4 Com. 209. And the arguments of Mr. East, on the same side, appear to carry great weight with them. 1 East, P. C. 454. In a case before Mr. Baron Hullock, where the defendants were charged, in one count, with a conspiracy to carry away a young lady, under the age of sixteen, from the custody appointed by her father, and to cause her to marry one of the defendants; and in another count, with conspiring to take her away by force, being an heiress, and to marry her to one of the defendants; the learned judge was of opinion, that even assuming the witness to be at the time of the trial the lawful wife of one of the defendants, she was yet a competent witness for the prosecution, on the ground of necessity, although there was no evidence to support that part of the indictment which charged force; and also on the ground that the latter defendant, by his own criminal act, could not exclude such evidence against himself. R. v. Wakefield, 2 Lewin, C. C. 1 and 279; 2 Deac. Dig. C. C. 4; 3 Russ. Cri. 624, 5th ed.; 2 Stark. Ev. 552 (n), 3rd ed.

Upon an indictment under Lord Ellenborough's Act, against a man for shooting at his wife, the latter was admitted as a witness by Mr. Baron Garrow, after consulting Holroyd, J., upon the ground of the necessity of the case; and Mr. Justice Holroyd sent Mr. Baron Garrow the case of R. v. Jagger, 1 East, P. C. 455, York Assizes, 1797, where the husband attempted to poison his wife with a cake in which arsenic was introduced, and the wife was admitted to prove the fact of the cake having been given her by her husband, and Mr. Justice Rooke afterwards delivered the opinion of the twelve judges, that the evidence was rightly admitted. Mr. Justice Holroyd, however, said, that he thought the wife could only be admitted to prove facts which could not be proved by any other witness. 3 Russ, 5th ed. 625. Upon the same principle that the evidence of the wife if living, would be received to prove a case of personal violence, her dying declarations are admissible in case of murder by her husband. R. v. Woodcock, 1 Leach, 500; R. v. John, Id. 504 (n); 1 East, P. C. 357; 3 Russ. Cri. 624, 5th ed. And in similar cases of personal violence, 1 1 Pennsylvania v. Stoops, Addis. 332. S.

the examinations of the party (husband or wife), murdered, taken before a magistrate pursuant to the statute, would, as it seems, be admissible against the husband or wife, where the evidence of the husband or wife, if living, would have been admissible. See M'Nally, *Ev. 175. Upon the hearing of an information for neglecting to maintain a wife whereby she becomes chargeable to the par[*129 ish, the wife is not a competent witness against her husband, for such neglect is not a personal injury to the wife, but an offence against the parish; nor is there any necessity for calling the wife, as such neglect might be proved by other persons. Reeve v. Wood, 34 L. J., M. C. 15.

On the same principle the husband would be admissible as a witness against the wife in cases of personal injury to him.'

In cases of bigamy. As has already been said (p. 126), after proof of the first marriage, no reliance can be placed on the second marriage as creating the relation of husband and wife, and, therefore, the parties to that marriage become competent witnesses for or against each other. It has been contended by two writers of authority (Alison's Pr. Cr. Law, 463; Best, Ev. 228) that the evidence should be admitted in those cases on the ground of the personal injury. that opinion has not yet received the sanction of authority.

But

Exceptions by statute to incompetency of husband and wife.2 In recent statutable offences the tendency of legislation has been to relax the rigidity of the common law rule by which husbands and wives are incompetent witnesses for or against each other in criminal proceedings. An exception to the rule is made under s. 11 of the Conspiracy and Protection of Property Act, 1875 (38 & 39 Vict. c. 86), where upon the hearing and determining of any indictment or information under sections 4, 5, and 6 (see post tit. Conspiracy), the respective parties to the contract of service, their husbands or wives, shall be deemed and considered as competent witnesses. Under 40 Vict. c. 14, on the trial of any indictment for the non-repair of any public highway or bridge, or for any nuisance to any public highway, river, or bridge, or for any other indictment or proceeding instituted for the purpose of trying or enforcing a civil right only, every defendant to such indictment or proceeding, and the wife or husband of any such defendant, shall be admissible witnesses, and compellable to give evidence.

The combined effect of s. 12 of the Married Women's Property Act, 1882 (45 & 46 Vict. c. 75), and s. 16, is not easily to be explained. It is said in section 12 that the husband or wife are competent to give evidence against each other, but not, as it seems, for each 1 Whipp v. State, 34 O. St. 87.

2 See under N. Y. statute against disorderly persons. People v. Commissioners Public Charities, 9 Hun, (N. Y.) 212. A statute which is restricted to the restoration of competency does not withdraw from the witness the right to claim the privilege arising from confidential relations. State v. Bernard, 45 Ia. 234.

other. With regard to section 12, as that section only contemplates a prosecution by the wife against the husband, and enacts that the husband may give evidence against the wife, it seems impossible to contend that the husband, although a prisoner, may be called as a witness against her (although not for her). The calling of the husband-prisoner as a witness would appear to be so strange an anomaly as to require very clear language to support it. With regard to section 16, it is most difficult to say what the words "shall in like manner be liable to criminal proceedings" mean. But it has been decided that where a husband prosecuted his wife and a male prisoner for larceny, the evidence of the husband was improperly received, and the conviction against the wife and against the male prisoner was quashed. R. v. Brittleton, C. C. R., March 3rd, 1884; Lord Coleridge, C. J.; Hawkins, Lopes, Stephen, Matthew, JJ. (Stephen, J., dub.) "R. v. Kain, 15 Cox, C. C. 388." But now by the Act just passed, 47 & 48 Vict. c. 14, s. 1, "In any such criminal proceeding against a husband or wife as is authorized by the Married Women's Property Act, 1882, the husband and wife respectively shall be competent and admissible witnesses, and, except when defendant, compellable to give evidence."

In any proceeding against any person for a crime under the *Explosive Substances Act, 1883 (46 Vict. c. 3), such person and *130] his wife, or husband, as the case may be, may, by section 4 (2), if such person thinks fit, be called, sworn, examined, and cross-examined as an ordinary witness in the case. And in any prosecution under the Corrupt Practices Prevention Act, 1883 (46 & 47 Vict. c. 51), the person prosecuted may, by section 53 (2), and the husband or wife of such person, if he or she thinks fit, be examined as an ordinary witness in the case.

Incompetency in other cases. The only other case of incompetency is that of a grand juror, who has sometimes been rejected on account of the oath of secrecy which he takes before the inquiry. But even as to him the case has been considered doubtful. 1 Phill. Ev. 140, 10th ed. Indeed, Lord Kenyon allowed a grand juryman to be called to prove who was the prosecutor of an indictment, being of opinion that it was a fact, the disclosure of which did not infringe upon his oath. Sykes v. Dunbar, 2 Selw. N. P. 1004. The court of King's Bench refused to receive an affidavit from a grand juryman, as to the number of grand jurors who concurred in finding the bill. R. v. Marsh, 6 A. & E. 236, 33 E. C. L. So where a grand jury returned an indictment containing ten counts, indorsed, "a true bill on both counts," and the prisoner pleaded to the whole ten counts; Patteson, J. (the grand jurors having been discharged), would not allow one of them to be called as a witness to explain their finding. R. v. Cooke, 8 C. & P. 582, 34 E. C. L. It is no exception against a person's giving evidence, either for or against a prisoner, that he is one of the judges appointed to try him. 2 Hawk, P. C. c. 46, s. 17; Bac. Ab. Evid. (A. 2). In R. v. Hacker, two of the persons in the commis