A woman who has cohabited with a man as his wife, but is not so in fact, is a competent witness for or against him. Bathews v. Galindo, 4 Bingh. 610 (a). Although in a case of forgery, Lord Kenyon refused to admit a woman as a witness for the prisoner, whom he had in court represented as his wife, but on hearing the objection to her competency taken, denied his marriage with her. Anon. cited by Richards, C. B., Campbell v. Twemlow, 1 Price, 83. This decision can no longer be considered as law.

Evidence of either admissible in collateral proceedings, although it tends to criminate the other.] It is not in every case in which the husband or wife may be concerned, that the other is precluded from giving evidence. It was indeed, in one case, laid down as a rule, founded upon a principle of public policy, that a husband and wife are not permitted to give evidence, which may tend to criminate each other (1). Per Ashurst, J., R. v. Cliviger, 2 T. R. 268. But in a subsequent case, the Court of King's Bench, after much argument, held that the rule as above stated, was too large, and that where the evidence of the wife did not directly criminate the husband, and never could be used against him, and where the judgment, founded upon such evidence could not affect him, the evidence of the wife was admissible. R. v. All Saints Worcester, Phill. Ev. 164, 8th ed. 6 M. and S. 194. So also, it was held in a settlement case, that a wife was a competent witness to prove her marriage with her husband, although he had previously been examined, and proved a second marriage with another woman. Lord Tenterden, C. J., in delivering the judgment of the court, said, "In deposing to this marriage, she did not contradict any thing that he (the husband) had said. I notice this fact, but we do not mean to say that if she had been called to contra- [*138] dict what he had sworn, she would not, in a case like this, have been a competent witness to do so. It is not necessary to decide that point at present." Rex v. Bathwick, 2 B. and Ad. 639 (b) (2).

A wife may likewise be a witness in an action between third parties, not immediately affecting the interest of the husband, though her evidence may possibly expose him to a legal demand, as in an action between third persons for goods sold and delivered, to prove that the goods were sold on her husband's credit, and not on the credit of the defendant. Per King, C. J., Williams v. Johnson, 1 Str. 204, Bull. N. P. 287, S. C. But it is settled, that neither husband non-access, in whatever form the legal may be parties to it. Rex v. Rooke, East, 203; Rex v. Kea, 11 East, 132. to any collateral fact for the purpose of proving non-access. Rex v. Stourton, 5 A. and E. 180 (c) (3).

nor wife is competent to prove proceeding may be, and whoever Wilson, 340; Rex v. Luffe, 8 Neither can either be examined as

Cases where husband or wife has been held incompetent.] On an indictment for a joint assault against two, it was proposed to examine the wife of one of the defendants in favor of the other, but there having been material evidence given against the husband, and it being a joint

(1) Commonwealth v. Shriver, Wharton's Dig. 327. State v. Gardiner, 1 Root, 485. Case of Francis & al., 1 Rogers' Rec. 121. Edgell v. Bennett & al., 7 Verm. 534. Commonwealth v. Shepherd, 6 Binn. 283. Commonwealth v. Wentz, 1 Ashmead, 269. (a) Eng. Com. L. Rep. xv. 88. (b) ld. xxii. 152. (c) Id. xxxi. 312.

trespass, and impossible to separate the cases of the two defendants, the Chief Justice refused to let her be examined.. Frederick's case, 2 Str. 1095 (1). On a joint indictment for burglary against two, the wife of one of the prisoners has been held incompetent to prove an alibi for the other. Littledale, J., rejected the evidence, on the ground that it would go to show that the witness for the prosecution was mistaken as to one of the prisoners, and would thus weaken his evidence altogether, and benefit her husband. On a case reserved, the judges thought the evidence rightly rejected. Smith's case, 1 Moody, C. C. 289 (a). See also Hood's case, Id. 281 (b). So upon an indictment for a conspiracy, the wife of one of the defendants cannot be called as a witness for another defendant. Locker's case, 5 Esp. 107. Again, upon an indictment for a conspiracy against the wife of W. S. and others, for procuring W. S. to marry, Abbott, C. J., rejected W. S. when called as a witness for the prosecution. Serjeant's case, Ry. and Moo. N. P. C. 352 (c). But it seems that if the wife has been connected with the commission of the offence, she may be brought into court for the purpose of being identified. This has been decided in the Scotch law, where several prisoners were put to the bar, charged with stronthrief, it was held incompetent to adduce the wife of one against any of the others at the bar, although she was allowed to be brought into court and identified by the other witnesses, as the person who had passed one of the stolen notes. Law's case, Alison, Prac. C. L. Scot. 533.

Smith's case, supra, must be understood as having been decided on its own peculiar circumstances, and not as warranting the conclusion that [*139 ] where prisoners set up a separate and distinct *defence, the wife of one prisoner cannot in any case be a witness for another prisoner. Phill. Ev. 160, 8th ed.

Where the husband has previously been convicted, the wife is a competent witness to prove the offence against another party. Thus, on an indictment against B. for sheepstealing, Alderson, B., held that the wife of A., who had been previously convicted of stealing the same sheep, was a competent witness for the prosecution. The learned judge observed, that in Thurtell's case, Mrs. Probert was the principal witness against him after her husband was acquitted. William's case, 8 C. and P. 284 (d).

It is a settled rule, that in cases of bigamy, the first and lawful wife is not a competent witness; Grigg's case, Sir T. Raym. 1; although the second wife is, ante, p. 137. The law is the same in Scotland. Alison, Prac. Cr. L. 463. But the propriety of this exclusion is doubted by an able text writer. "Having once," he says, "for just and necessary reasons, admitted an exception to the general rule, in the case of a wife who has sustained a personal injury from her husband, is there any principle on which it can be held not to include that case where the injury to herself and her family is the greatest, from a desertion of them both by the head of the family? Nor is the reason of exclusion, founded on the peace of families, here of the slightest weight, but rather the reverse; for a husband who has been guilty of bigamy, has. proved him

(1) Commonwealth v. Eastland, 1 Mass. 15. That the wife of one is a material witness for the other, is sufficient ground for a separate trial. Ibid. Case of Shaw & al., 1 Rogers' Rec. 177. See People v. Colburn, 1 Wheelers' C. C. 479. State v. Anthony, 1 M'Cord, 285. (a) 2 Eng. C. C. 289. (6) 2 Ibid. 281. (c) Eng. Com. L. Rep. xxi. 453. (d) Id. xxxiv. 391.

self dead to all sentiments of that description, and having already deserted his first wife for another woman, he has given the clearest evidence that no farther family dissentions need be apprehended from her appearing to give evidence against him." Alison, Prac. Cr. L. 463.

Whether or not the wife is a competent witness against her husband on a charge of treason, appears to have been doubted. In Grigg's case, T. Raym. 1, which was an indictment for bigamy, it was said, obiter, that the 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, s. 2, c. 46, s. 182; Bac. Ab. Evid. A. 1. See 2 Stark. Ev. 404, 2d ed.; 2 Russ. 607; Phill. Ev. 161, 8th ed.

Although by stat. 6 Geo. 4, c. 16, s. 37, commissioners of bankrupts are authorized to summon before them the wife of any bankrupt, and to examine her for the discovery and finding out of the estate of the bankrupt concealed by her, yet she cannot be examined touching the bankruptcy of her husband. 12 Vin. Ab. 11; Ex parte James, 1 P. Wms. 611. Her evidence being admissible only by statute, before the commissioners, she will not be a competent witness for or against her husband, on an indictment against him for concealing his effects.

Cases of personal violence.] It is quite clear that a wife is a competent *witness against her husband, in respect of any charge which af- [*140] fects her liberty or person (1). Per Hullock, B., Wakefield's case, p. 157, Murray's ed.; 2 Russ. 606. Thus in Lord Audley's case, 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 is 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. 414; 1 Hale, P. C. 301. So on an indictment against the husband for an assault upon the wife. Azire's case, 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 against the husband, for an attempt to take her away by force, after 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. Fullwood's case, Cro. Car. 488; Brown's case, 1 Vent. 243; Naagen Swendsen's case, 14 How. St. Tr. 559, 575. And she was consequently a witness for him. Perry's case, coram Gibbs, 1794; Hawk. P. C. b. 2, c. 46, s. 79, cited Ry. and Moo. N. P. C. 253 (a). But a doubt has been entertained, whether, if the woman afterwards assent to the marriage, she is capable of being a witness. In Brown's case, (supra,) it is said by Lord Hale, that most were of opinion that had she lived with him any considerable time, and as

(1) Trever's case, 1 Rogers' Rec. 107. Resp. v. Hevice & al., 2 Yeates, 114. Soule's case, 5 Greenl. 407. Wiggin's case, 2 Rogers' Rec. 156. State v. Boyd, 2 Hill, 288.

(a) Eng. Com. L. Rep. xxi. 453.

sented 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 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 defendant, by his own criminal act, could not exclude such evidence against himself. Wakefield's case, 257, Murray's ed.; 2 Russ. 605; 2 Stark. Ev. 402, (n.) 2d 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. | *141 ] 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. 2 Russ. 106.

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. Woodcock's case, 1 Leach, 500; John's case, Id. 504 (n.); 2 Russ. 606 (1). And in similer cases of personal violence, 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.

(1) Penn. v. Stoops, Addis. 332.

ADMISSIBILITY OF ACCOMPLICES.

Accomplices in general

Principal felon

Accomplice, when evidence for prisoner 142 Situation of an accomplice when called
Promise of pardon

Effect of accomplice's evidence

143 148

as a witness

144

146

147

Accomplices in general.] The evidence of persons who have been accomplices in the commission of a crime with which the prisoner stands charged, is, in general, admissible against him (1). This rule has been stated to be founded on necessity, since, if accomplices were not admitted, it would frequently be impossible to find evidence to convict the greatest offenders. Hawk. P. C. b. 2, c. 46, s. 94. Even where the accomplice has been joined in the same indictment with the prisoner, he may still be called as a witness, before he is convicted. Id. s. 95. It is said that an accomplice indicted with another is an admissible evidence, if he be not put upon his trial. 2 Stark. Ev. 11, 2d ed.; 2 Russell, 597. In strictness, however, there does not seem to be any objection to the admitting the witness at any time before conviction. The party that is the witness, says Lord Hale, is never indicted, because that much *weakens [*142] and disparages his testimony, but possibly does not wholly take away his testimony. 1 Hale, P. C. 305. It is not a matter of course, to admit an accomplice to give evidence on the trial, even though his testimony has been received by the committing magistrates, but an application to the court for the purpose must be made. Phill. Ev. 28, 8th ed. The practice, where the testimony of an accomplice is required to prove the case before the grand jury, and he is in custody, is for the counsel for the prosecution to move that he be allowed to go before the grand jury, pledging his own opinion, after a perusal of the facts of the case, that the testimony is essential. 2 Stark. Ev. 11, 2d ed. 2 Stark. Ev. 11, 2d ed. Where the accomplice has been joined in the indictment, and before the case comes on, it appears that his evidence will be required, the usual practice is, before opening the case, to apply to have the accomplice acquitted. Rowland's case, Ry. and Moo. N. P. C. 401 (a). Where the case has proceeded against all the prisoners, but no evidence appears against one of them, the court will, in its discretion, upon the application of the prosecutor, order that one to be acquitted for the purpose of giving evidence against the rest. Fraser's case, 1 M'Nally, 56. But the judges will not, in general, admit an accomplice, although applied to for that purpose by the counsel for the prosecution, if it appears that he is charged with any other felony than that on the trial of which he is to be a witness. This was stated by Mr. Justice Park in several cases, on the Oxford Spring Circuit, 1826. Carrington's Supplement, 67, 2d ed.

(1) Brown v. The Commonwealth, 2 Leigh, 769. At the discretion of the Court upon motion of the public prosecuting officer. People v. Whipple, 9 Cowen, 707.

(a) Eng. Com. L. Rep. xxi. 471.