against those jointly indicted with him, the practice has been to obtain the leave of the Court to offer no evidence against the particular prisoner, and to take an acquittal of him before examining him as a witness. (f)

The 16 & 17 Vict. c. 83, s. 1, enacts that on the trial of any issue joined, or of any matter or question, or on any inquiry arising in any suit, action, or other proceeding in any court of justice, or before any person having by law or by consent of parties authority to hear, receive, and examine evidence, the husbands and wives of the parties thereto, and of the persons in whose behalf any such suit, action, or other proceeding may be brought or instituted or opposed or defended, shall, except as hereinafter excepted, be competent and compellable to give evidence, either vivâ voce or by deposition, according to the practice of the Court, on behalf of either or any of the parties to the said suit, action, or other proceeding.'

Sec. 2. Nothing herein shall render any husband competent or compellable to give evidence for or against his wife, or any wife competent or compellable to give evidence for or against her husband, in any criminal proceeding, or in any proceeding instituted in consequence of adultery.' (g)

Sec. 3. No husband shall be compellable to disclose any communication made to him by his wife during the marriage, and no wife shall be compellable to disclose any communication made to her by her husband during marriage. (h)

With the exceptions hereafter pointed out, husband and wife have always been incompetent to give any evidence for or against each other in criminal cases; (i) therefore the wife of a prisoner cannot give evidence for him.

And they cannot be witnesses against each other,1 by reason of the dissensions and distrusts that it would occasion, inconsistent with the happiness of married life and the peace of families; (j) and therefore, on an indictment for bigamy, the first and true wife cannot be admitted to give evidence against her husband; (k) but, after proof of the first marriage, the second wife may be a witness. (1) And where an offence can only be committed by several joining in it, as conspiracy or riot, the husband or wife of

(f) R. v. Rowland, R. & M. N. P. R. 401. R. v. Owen, C. & P. 83; ante, p. 644.

(g) So much of this section as is contained in the words 'or in any proceeding instituted in consequence of adultery' are repealed by 32 & 33 Vict. c. 68, s. 1.

(h) Sec. 4 repeals so much of sec. 1 of the 6 & 7 Vict. c. 85, as provides that the Act shall not render competent the husbands and wives of the parties therein enumerated.

AMERICAN NOTE.

1 Stein v. Bowman, 13 Peters, 209. S. v. M'David, 15 La. Ann. 403. Enos v. Hunter, 4 Gilm. 211. S. v. Bradley, 9 Rich. (Law) 168. S. v. Wilson, 2 Vroom.

77. P. v. Northrup, 50 Barb. 147. Lingo v. S., 29 Geo. 470. M'Gwin v. Maloney, 1 B. Mon. 225. Stewart v. Johnson, 3 Harrison, 88.

one of those who are jointly indicted has always been an incompetent witness for or against any of the others; for the acquittal or conviction of such other would directly tend to the acquittal or conviction of the wife or husband, as the case might be. Thus on a prosecution against several persons for a conspiracy, the wife of one of the defendants was held not to be a competent witness for the others, a joint offence being charged, and an acquittal of all the other defendants being a ground of discharge for her husband. (m) And wherever the acquittal of the principal would enure to the accessory's discharge, it may well be doubted whether the wife or husband of the accessory would have been a competent witness for the principal.

On an indictment for conspiracy against Hamp and others, Mrs. Broome was examined for the prosecution, and it appeared that her husband had been bound by recognisances to appear and take his trial for cheating at play at a previous assize, but that he did not appear, and had not returned home since, and the wife being asked whether she had not seen her husband in Birmingham a few days before, said, 'I decline to answer the question, because my husband did not appear to his recognisance;' Lord Campbell, C. J., 'I think on that the question ought not to be proposed.' (n)

The wife of one of several prisoners on their trial at the same time on a joint indictment cannot be called as a witness for or against any of the prisoners, notwithstanding that the indictment contains more counts than one respectively charging distinct offences. (0) And 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 the wife of one prisoner was incompetent to give evidence for or against the other prisoners; but Bolland, B., held that the witness was incompetent. (p)

In a civil case Lord Hardwicke would not suffer a wife to give evidence for her husband, even by consent of the other party. (q) And even after a divorce by Act of Parliament, the wife is not competent in an action against her husband to give evidence of anything that happened during coverture, (r) on the ground that the confidence which subsisted between them at the time shall not be violated in consequence of any future separation. (8) The rule, however,

(m) Vol. i. p. 528. R. v. Frederick, 2 Str. 1095. R. v. Smith, R. & M. C. C. R. 289. See Rudd's case, 1 Leach, 127.

(n) R. v. Hamp, 6 Cox, C. C. 167. (0) R. v. Thompson, 41 L. J. M. C. 112; 12 Cox, C. C. 202. Before this case there was some doubt about this. See R. v. Payne, ante, p. 661. R. v. Sills, 1 C. & K. 494, July, 1844. R. v. Moore, Cox, C. C. 59, August, 1843. R. v. Bartlett, 1 Cox, C. C. 105, April, 1844. R. v. Denslow, 2 Cox, C. C. 230, A.D. 1847.

(p) R. v. Webb, Bushell, J., and T. Croome, Gloucester Spr. Ass. 1830. MSS.

C. S. G.; and see Dalt. c. 164, p. 540, cited 1 Hale, 301.

(9) Cas. temp. Hardw. 264.

Monroe v. Twisleton, Peake Ev. Appendix. So a widow cannot be called by the defendant to disclose conversations between herself and her late husband, in an action by his executors. Doker v. Hasler, R. & M. N. P. R. 198, ruled by Best, C. J. But see Beveridge v. Minter, 1 Carr. & P. 364.

(s) By Lord Ellenborough, in Aveson v. Kinnaird, 6 East, 192.

must be understood as applying to cases where the husband or wife are directly accused of a crime, and not as extending in the same degree to collateral suits or proceedings between third persons. was, indeed, once held, in R. v. Cliviger, (t) that husband and wife in collateral cases are not to be permitted to give any evidence that might even tend to criminate each other; for though the evidence of the one could not be used against the other on a subsequent trial for the offence, yet it might lead to a criminal charge, and cause the other to be apprehended. And the principle of that decision would extend to prevent the one from being called to contradict the other; for the tendency of the evidence of the latter witness would be to prove the former guilty of perjury. (u) But the rule laid down in the case of R. v. Cliviger was much discussed in the case of R. v. All Saints, Worcester, (v) in which the Court of King's Bench was of opinion that it had been expressed in terms too large and general; and held, that where the evidence of the wife did not directly criminate the husband (as in a proceeding relating to other matters, and not to any criminal charge against him), and never could be used against him, nor could he ever be affected by the judgment of the Court founded upon such evidence, she was a competent witness.

So where upon the trial of an appeal a pauper proved his marriage with E., and M. B. was then called by the other side to prove that she had previously been married to the pauper; it was held that she was competent for this purpose; as nothing that was said by her in this case, nor any decision of the Court of Sessions founded upon her testimony, could afterwards be received in evidence to support an indictment against her husband for bigamy. (w)

But where on an indictment for stealing wheat, Eliza Ellis was called on the part of the Crown to prove that her husband, who had absconded, had been present when the wheat was stolen, and that she saw him deliver it to the prisoner; Taunton, J., doubted whether she could be so examined, as her evidence might be used as a ground of convicting her husband by causing a charge to be made against him. The two preceding cases were then cited. Taunton, J., I am against breaking down the rules of law. My opinion is to adhere to the rule laid down by Lord Hale. (c) In R. v. All Saints, Worcester, at the time when the witness was examined, there was nothing in her evidence to criminate her husband. Here it is sought to make the woman charge her husband, not obliquely, but directly and immediately.' Having consulted Littledale, J., the learned judge added, 'We both agree in opinion that the witness is incompetent. We think R. v. All Saints, Worcester, very distinguishable. There at the time when the wife was examined there was nothing in her evidence to criminate her husband. Here the evidence would directly charge the husband with being a principal; and although

(t) 2 T. R. 263.
(u) 2 T. R. 268.
(e) 6 M. & S. 194.

(w) R. v. Bathwick, 2 B. & Ad. 639. The Court doubted whether the competency of a witness could depend upon the marshalling the evidence, or the stage of

the cause at which the witness was called. See Peat's case, 2 Lewin, 288, vol. i. p. 715.

(x) I am not aware of the passage referred to by the learned judge, but see 2 Hale, P. C. 279, 1 Hale, P. C. 301. C. S. G.

there is no prosecution pending, her evidence cannot but facilitate an accusation against her husband. Now, the law does not allow the wife to give evidence against her husband, and it is quite consistent with that principle that this evidence should not be received.' (y)

But where the first count charged Halliday with obtaining money by falsely pretending that a document produced to a bank by Eliza, the wife of D. Thomas, had been filled up by his authority; the second count was similar as to another document; and the third count charged Halliday and Eliza Thomas with a conspiracy to cheat the bank; but she was not tried with Halliday. The evidence of D. Thomas was essential to prove that he had given no authority to fill up the documents; but it was objected, on the authority of the preceding case, that he was incompetent to prove his wife guilty of a conspiracy, or even to prove the counts for false pretences; but Byles, J., thought his evidence admissible on all the counts; and the jury found the prisoner guilty on the first count only; and, on a case reserved, it was held that the evidence of the husband was admissible in support of the first count. His evidence no doubt tended to shew that his wife had acted criminally, but that count contained no charge against her. (2)

Where, however, the husband has either been convicted or acquitted of the same felony, respecting which the wife is called. as a witness, she is competent to be examined. Thus, on an indictment for sheep-stealing, the wife of a person who had been previously convicted of stealing the same sheep, was held a competent witness for the prosecution. (a) So where one prisoner pleaded guilty, it was held that his wife was a competent witness against the other prisoner jointly indicted with him, as on the issue to be tried her husband was no longer interested. (b) So where a wife and her paramour were jointly indicted for stealing the goods of the husband, it was held that the husband was a competent witness against the paramour; for the wife was entitled to be acquitted, as she could not be guilty of stealing her husband's goods. (e) And in Thurtell's case, Mrs. Probert was examined as a witness against Thurtell after her husband was acquitted. (d) In the same manner if Probert had not been apprehended, and Thurtell only had been on trial at the time, the wife of Probert would have been capable of being examined; because the question would have been whether Thurtell was guilty, and not whether Thurtell and Probert were guilty. (e)

And the reasoning upon which the decision in R. v. All Saints, Worcester, was founded, is equally strong to shew that one may be

(y) R. v. George Gleed, Gloucester Lent Ass. 1832. MSS. C. S. G.

(3) R. v. Halliday, Bell, C. C. 257.

The Court seem to have considered the wife competent on all the counts, as Pollock, C. B., added, 'Indeed, in this indictment she was not charged at all, although she was involved in the conspiracy charged in the third count; but that did not prevent the husband's evidence from being admissible.' This case was not argued, and no

previous decision referred to when it was decided.

(a) R. v. Williams, 8 C. & P. 284. Alderson, B.

(b) R. v. Thompson, 3 F. & F. 824, Keating, J.

(c) R. v. Glassie, 7 Cox, C. C. 1. Lefroy and Monahan, CC. JJ.

(d) Per Alderson, B., R. v. Williams, supra.

(e) Per Alderson, B., Hawkesworth v. Showler, 12 M. & W. 45.

called as a witness to disprove what has been stated by the other, and that either the party who has called the one, or the opposing party, may call the other for the purpose of contradicting. (f)

Upon an indictment for forcible abduction and marriage of a woman, she may be a witness for the Crown, (g) or the prisoner; (h) but this is rather a case which does not fall within the general rule than an exception to it; for she is not legally his wife, a contract obtained by force having no obligation in law. () Indeed, if the actual marriage is valid (as where the woman after abduction consents to the marriage voluntarily, and not induced by any precedent menace), or if the marriage has been ratified by subsequent voluntary cohabitation, it has been said she is not competent for or against the prisoner. (j) But there are very considerable authorities. to the contrary. (k) And in one case, where the defendants were indicted for a misdemeanor, in conspiring 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, for conspiring to take her away by force, being an heiress, and to marry her to one of the defendants; Hullock, B., was of opinion that, even assuming the young lady to be at the time of the trial the lawful wife of one of the defendants, she was a competent witness for the prosecution, although there was no evidence to support that part of the indictment which charged force. (1) The wife is also admitted as a witness against her husband ex necessitate, in a prosecution of him for offences against her person. (m) So her dying declarations are admissible against him in the case of murder. (n) In an indictment of William Whitehouse, (o) at Stafford, upon Lord Ellenborough's Act, for shooting at his wife, she was admitted as a witness for the prosecution by Garrow, B., after consulting Holroyd, J., upon the ground of the necessity of the case; and Holroyd, J., sent Garrow, B., the case of R. v. Jagger, Yorkshire Assizes, 1797, where the husband had 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 Rooke, J., afterwards delivered the opinion of the twelve judges that the evidence had been rightly admitted. Hol

(f) 1 Phill. Ev. 80, 7th ed.

(g) Gilb. Ev. 120. 1 Hale, P. C. 301, 302. 2 Hawk. c. 46, s. 78. Fulwood's case, Cro. Car. 488. Brown's case, 1 Ventr. 243. Swendsen's case, 5 St. Trials, 456.

(h) R. v. Perry, at Bristol, 1794, cited by Abbott, C. J., in R. v. Sergeant, R. & M. N. P. C. 354. 1 Hawk. P. C. c. 41, s. 13.

(i) Gilb. Ev. 120. 1 Hale, P. C. 302, 660, 661. Bull. N. P. 286.

(j) 1 Hale, P. C. 302, 661. 1 Phill. Ev. 84, 7th ed. 2 Stark. Ev. 553.

(k) 4 Blac. Com. 209. 1 East, P. C. .c. 11, s. 5, p. 454.

(1) R. v. Wakefield, see the trial, published by Murray, p. 257. 2 Lewin, 1 & 279. In Perry's case, supra, no force was used. See per Hullock, B., in R. v. Wakefield. In this case it was contended that

the wife's incompetency might be shewn either by examining her on the voire dire, or by other witnesses, and for the defendant it was proposed to shew her incompetency by other witnesses. Hullock, B., ruled that as this was a point of practice, and he saw some inconvenience in not calling her, which would not exist if she were called, she should be called.

(m) Lord Audley's case, 1 St. Tr. 393. This case has been denied to be law, but is now established by the highest authorities. 1 Hale, P. C. 301. 2 Hawk. P. C. c. 46, s. 77. Bull, N. P. 287. R. v. Sergeant, R. & M. 354. R. v. Jellyman, 8 C. & P. 604. 1 East, P. C. c. 11, s. 5, p. 455.

(n) Woodcock's case, 1 Leach, 500. John's case, ibid. 504, n. (a). (0) MSS. Russell, Sergt.