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Gilb. Ev. 119. 2 Hawk. P.C. c. 46. $70. Barker v. Dixie, Cas. temp. Hardw. 264. And, therefore, on an indictment for bigamy, the first and true wife cannot be admitted to give evidence against her husband; but, after proof of the first marriage, the second wife may be a witness. (See post, Vol. III. (Criminal Law,) tit. Poly: gamy, p. 677.). And so strictly is this rule preserved, that in a not compecivil case Lord Hardwicke would not suffer a wife to give evidence tent, even by for her husband, even by consent of the other party. Cas. temp. consent ; Hardw. 264. (But see Pedley v. Wellesley, 3 C. & P. 558.) And even after a divorce by act of parliament, the wife is not competent in an action against her husband to give evidence of any thing that happened during coverture (Monroe v. Twisleton, Peake Ev. Appendix (a)), on the ground that the confidence which subsisted between them at the time shall not be violated in consequence of any future separation. By Lord Ellenborough, in Aveson v. Kinnaird, 6 East, 192. The rule, however, must be understood as ap- collateral cases. plying 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. It was, indeed, once held, in the case of Rex v. Cliviger, 2 T. R. 263., 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. 2 T.R. 268. But the rule laid down in the case of Rex v. Cliviger, was much discussed in a subsequent case, Rex v. All Saints, Worcester, 6 M. & S. 194., in which the court of K. B. 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. (6)
And the reasoning upon which this decision is founded is equally They may be strong to shew, that one may be called as a witness to disprove what called to conhas been stated by the other, and that either the party who has tradict each
other. called the one, or the opposing party, may call the other for the purpose of contradicting. Ibid. The declarations of the husband Their declaraor wife are subject to the same rule as their evidence. Ibid. tions.
Upon an indictment for forcible abduction and marriage of a Exceptions. woman, she may be a witness for the crown: Gilb. Ev. 120. 1 Hale P. C. 301, 302. 2 Hawk, c. 46. s.78. Or the prisoner: Rex v. Perry, at Bristol, 1794, cited by Abbott C. J. in Rex v. Serjeant, 1 Ry. & Mood. N.P.C. 354. ; but this is rather a case which
(a) So a widow cannot be called by the defendant to disclose conversations between herself and her late husband, in any action by his executors. Doker v. Hasler, 1 Ry. of M. 198., ruled by Best C. J. (But see Beveridge v. Minter, 1 Carr. J P. 364.)
(6) Although, perhaps, she would not have have been compellable to give evidence tending to criminate her husband. 1 Phil. Ev. 75.
Indictment for personal viovence.
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 : Gilb. Ev. 120. i Hale, P.C. 302. Bull, N.P. 286. 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 that she is not competent for or against the prisoner: 1 Hale, P.C. 302. i Phil. Ev. 78. Stark Ev. pt. iv. p.711. But there are very considerable authorities to the contrary : 4 Blac. Com. 209. 1 East, P.C. c.ll.
And in a late case tried before Mr. Baron Hullock, at Lancaster, Spring Circuit 1827, Rex v. Wakefield and others, 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 detendants; and, in another count, for conspiring to take her away, by force, being an heiress, and to marry her to one of the defendants; the learned baron was of opinion, that, even assuming the young lady to be at the time of the trial the lawful wife of one of the de. fendants, she was a competent witness for the prosecution, although there was no evidence to support that part of the indictment which charged force. (See the trial, published by Murray, p. 257.)
The wife is also admitted as a witness against her husband, ez me. cessitate, in a prosecution of him for offences against her person. Lord Audley's case, 1 St.Tr. 39.(a) So her dying declarations are admissible against him in the case of murder. Woodcock's case, I Leoch. 500 John's
,ib. 504. n. (a). In an indictment of William Whitehouse at Stafford, sum. ass. 1818, upon Lord Ellenborough's act, for shooting at his wife, she was admitted as a witness for the prosecution by Mr. Baron Garrow, after consulting Holroyd J., upon the ground of the necessity of the case; and Mr. J. Holroyd sent Mr. B. Garrow the case of Rex 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 Mr. J. Rooke afterwards delivered the opinion of the twelve judges that the evidence had been rightly admitted. Mr. J. Holroyd, however, said, he thought the wife could only be admitted to prove facts which could not be proved by any other witness.
In Rex v. Wood, M. Sitt. 26 G. 3. on an indictment for forcibly breaking open the house of a third person, and assaulting the defendant's wife, Lord Mansfield C. J. admitted the defendant's wife to prove the assault on her. MS.
So on an indictment against a man for beating his wife, she was held competent: By Lord Raymond on the authority of Lord Audley's case, Rex v. Azire, 1 Stra. 633. Bull. N. P. 987. And the wife is always permitted to swear the peace against ber husband. Bull, N. P. 287. And her affidavit has been per mitted to be read on an application to the court of K. B. for an information against the husband for an attempt to take her away by force after articles of separation ; and it would be strange to
(a) This case has been denied to be law, but is now established by the higbest authorities. 1 Hale, P. C. 301. 2 Hawk P. C. c. 46. $ 77. Bull. N. P. 287. Rer v. Serjeant, 1 Ry. of Mood. 354.
permit her to be a witness to ground a prosecution, and not afterwards to be a witness at the trial. Lady Lawley's case, ibid. And it seems to be now settled, that in all cases of personal injuries committed by the husband and wife against the other, the injured party is an admissible witness against the other. 1 East, P. C. č. 11. $ 5. p. 455. In the Wakefields' case, p. 257., Hullock B. said, “I take it, it is quite clear now that a wife is a competent witness against her husband in respect of any charge which affects her liberty and person."
But this rule seems to be confined to cases where the charge Not compeaffects the liberty or the person of the wife. Thus it has been tent in cases decided, that in an indictment for a conspiracy in procuring a
where there is
no personal inlady, then a ward in chancery, to marry, the wife was not a good jury. witness for one of the co-defendants, if her evidence might enure to the acquittal of her husband; Rex v. Locker, 5 Esp. 107.: and since she could not be admitted in favour of her husband, it follows necessarily that she could not be a witness against him. 1 Ry. & Mood. 354. So on an indictment against the wife of w. S. and others for a conspiracy in procuring W. S. to marry, Abbott C. J. refused to admit W. S. as a witness in support of the prosecution ; Rex v. Serjeant, 1 Ry. & Mood. 352. But it is not necessary, it should seem, that there should be force employed in order to make the husband or wife competent. In the case of the Wakefields before-mentioned, for abduction, Hullock B. was of that opinion, and he mentioned that he had seen a report of the case of Rex v. Perry, tried before Gibbs C. J. as recorder of Bristol, where the wife was held competent, and that no force was used in the abduction in that case.
In the case of high treason it has been said, that a wife shall be High treason. admitted against her husband, because the tie of allegiance is more obligatory than any other; Bull. N. P. 286. Gilb. Ev. 120.: butthere are high authorities to the contrary; 1 Hale, P. C. 301., 1 Brown. 47.
Whether a woman who has cohabited with a man as his wife, Competency of but who is ready to swear she is not married to him, will be al- a woman living lowed to give evidence on the part of the man, was once consi
as a wife. dered a doubtful question. Campbell v. Twemlow, 1 Price, 81. On a trial for forgery, Lord Kenyon refused to admit a woman as witness for the prisoner, whom in the course of the trial he had frequently alluded to as his wife, but afterwards, on hearing an objection taken to her competency, denied that they were in fact married. Per Richards, i Price, 83. But the principle seems now established that such a witness is not to be excluded unless de jure wife of the party. Batthews v. Galindo, 4 Bingh. 610.
In the case of Rex v. Perry, Lord Chief Justice Gibbs stated, A wife comthat he could see no distinction between admitting a wife for and petent against against her husband. “ The King v. Perry,” said Lord Chief Justice is so for her
husband. Abbott, in Rex v. Serjeant, 1 Ry. & Mood. 354., “was much talked about at the time, and Chief Justice Gibbs expressed his surprise that any doubt should have been entertained, that a wife was in all cases a competent witness for her husband, when admissible against him.”
Anciently the rule was, that if there were any objection to the Objections to competency of a witness, he should be examined on the voire competency;
when to be dire (a), and it was too late after he was sworn in chief. Turner taken; v. Pearte, 1 T. R. 719. But for the convenience of the court,
and the furtherance of justice (as the incompetency may not at first be suspected), the rule is now so far relaxed, that if it is discovered at any part of the trial that a witness is incompetent, his evidence will be struck out. Turner v. Pearte, 1 T. R. 720. Howell v. Lock, 2 Campb. 15. Stone v. Blackburn, 1 Esp. 57.
Perigal v. Nicholson, Wightw. 64. But where upon a trial for high treason, it appeared, after a witness had been examined for the crown, without objection on the part of the prisoner, that he had been misdescribed in the list of witnesses, which is required by the statute 7 Ann. c. 21. § 14. to be given to the prisoner previous to his trial, the court would not permit the evidence of the witness to be struck out; but said the objection ought to have been taken in the first instance; otherwise, a party might take the chance of getting evidence which he liked, or if he disliked the testimony, he might then get rid of it on the ground of misdescription. Rex v. Watson, 2 Stark. N. P. C. 158. And upon this ground, Mr. Starkie expresses his opinion, that a party who is cognizant of the interest of the witness at the time he is called, is bound to make his objection in the first instance. Er. pt. ir. p. 757. With respect to the power of questioning a witness for the purpose of discovering his incompetency, there is still a material difference, which will presently be pointed out, between an examination on the voire dire, and one after the witness
has been sworn in chief. how to be sup- The party against whom a witness is called may examine him ported; respecting his interest on the voire dire, or may call another wita
ness, and produce other evidence in support of the objection : per Hullock B., Wakefield's case, p. 157. The old rule is said to have been, that if the witness were examined by the opposite party as to the fact of the objection, and denied it upon his oath, the party would not be at liberty to call afterwards another witness to prove it, in order to repel him from giving evidence, unless the other side acquiesced. (6) But the modern and more convenient practice seems to be, that if the fact of incompetency is satisfactorily proved, the witness will be incompetent, although he may have ventured to deny it on the voire dire. And if the opposite party raise the ob
jection of interest by independent evidence, and without putting how repelled. a question to the witness, then the party who has called him cannot
be allowed to put a question to him in order to repel the objection:
1 Phill. Ev. 123. Mode of exa- An examination on the voire dire is allowed to be conducted mination on without strict regard to the general rule of evidence, which requires voire dire.
the best possible proof of a fact, and admits no other. Thus a witness may be examined as to the contents of a written document without a notice to produce : Howell v. Locke, 2 Campb. 15. For
(a) The voire dire is, when it is prayed upon a trial at law, that a witness may (previously to his giving evidence in the cause) be sworn to speak the truth (in old French, voire dire), whether he shall lose or get by the matter in controversy. Blount's Law Dictionary.
(6) By Lord Hardwicke in Lord Lovat's case, 9 St. Tr. 647. See also the observations of Parker C. J. in Rer v. Muscot, 10 Mod. 193., in which case it was asserted, but overruled, that in criminal cases there could be no examination on the voire dire.
the party objecting could not know previously that the witness would be called, and consequently might not be prepared with the best evidence to establish his objection. (a)
And the same relaxation is allowed in removing an objection of incompetency as in raising it. Thus, where, in an action brought by a chartered company, a witness for the plaintiffs admitted, on the voire dire, that he had been a freeman of the company, but added that he was then disfranchised, Lord Kenyon ruled, that it was not necessary to prove the disfranchisement by the regular entry in the company's books, and that the witness was competent: Butchers' Company v. Jones, 1 Esp. 162. Accordingly, in the case of the King v. Gisburn, 15 East, 57., on a question of settlement, where the point for the consideration of the court of K. B. was, whether a witness, after having admitted on his examination upon the voire dire that he was the occupier of a cottage in the appellant township of the annual value of 25s., but that he had never been charged with or paid any public rate or tax in that township, could be examined without producing the rate to shew that he was not rated, the court held, that the witness was competent upon the voire dire : That what he answered must be taken for better for worse, and that if he should answer falsely he might be indicted for perjury. So in Botham v. Swingler, i Esp. 164. S. C. Peake N. P. C. 219., a witness was allowed to remove an objection of interest, raised on the voire dire, by his own statement that he had become a bankrupt, and his estate had been assigned. So where a bankrupt called as a witness stated on the voire dire that he had obtained his certificate and leased his assignees, Park J. held him competent, without production of the release.
Carlisle v. Eady, 1 Carr. & P. 234. (See also Bunter v. Warre, 1 B. & C. 689.) Again, where a witness was objected to as next of kin in an action by, an administrator, but on re-examination answered that he had released all his interest, this was held by Lord Ellenborough to remove the objection: Ingram v. Dade, MS. 1 Phil. Èv. 124.
But it is only on the voire dire that the general rules of evidience are thus relaxed; for although objections to the competency of a witness may now be made at any stage of the trial, yet they are not to be attended with the privileges of an examination upon the voire dire. Thus a witness cannot be cross-examined, for the purpose of shewing him incompetent, as to what interest be takes under a will, for the will itself should be produced.
Howell v. Lock, 2 Campb. 14. So where a party, who calls a witness, attempts to remove the objection by other independent proof, and mot on the voire dire, he will then be subject to all the general rules of evidence. Thus where an objection, on the ground of interest, has been raised by the defendant to a witness of the plaintiff, who called another to prove that the former witness had been released, it was held that he could not be allowed to speak of the contents of the release, but the release itself, if not lost or destroyed, must be produced. Corking v. Jarrard, 1 Camp. 37. So where the objection is not raised on the voire dire, but appears
(a) But if the witness produces the instrument, on which the objection to his
Butler v. Carver, competency rests, it ought to be read. By Abbolt C. J., 2. Stark. N. P. C. 434. VOL. I.