Admissibility of their declara tions against their parish. Competency of parish officer when parish officers are sued in the name of their clerk. Husband and wife; But it must be observed, that this decision was before the stat. 54 G. 3. c. 170. (suprà, p. 1032.), by which it is provided, that in respect of certain matters, no rated inhabitant of a parish shall be deemed an incompetent witness for or against such parish. See infrà, §11., as to the admissibility in evidence of the declarations of one rated inhabitant of a parish against the other inhabitants. Where by a local act the directors and overseers of the poor were enabled to sue and be sued in the name of their clerk, it was held, in an action against the clerk, on a contract made by the directors, that a director was thereby rendered a competent witness for the defence, like any other inhabitant. Fletcher v. Greenwell, 1 Cr. M. & R. 755. S. C. 5 Tyrwh. 316. It has been already observed, that no tie of relationship will create an interest disqualifying as a witness, except that of husband and wife. They cannot be admitted to be witnesses either for or against each other; for, since their interests are absolutely for each other; the same, they cannot swear for the benefit of each other, any more than a man can attest for himself; Gilb. Ev. 119. 2 Hawk. P.C. c. 46. §. 70.; therefore, the wife of a prisoner cannot give evidence for him, nor for any one of several others indicted with him, where a joint offence, as a conspiracy, is charged, and an acquittal of all the others would be a ground of discharge for her husband. Rez v. Locker, 5 Esp. 107. The law is the same on an indictment for an assault, where the cases of the co-defendants cannot be separated. Rex v. Frederick, 2 Stra.1095. So in Rex v. Smith, Cobbey, and Draper, 1 Mood. 289., the prisoners were tried before Mr. J. Littledale at the Spring Assizes, in the year 1826, for the county of Lincola, on an indictment for burglary: Cobbey and Draper in their defence each set up an alibi: Draper, after having called and examined one witness to prove an alibi on his part, proposed to call his daughter in further proof of the alibi set up by him; but it appear ing that she was the wife of the prisoner Smith, the learned judge thought that she could not be examined as a witness, and did not receive her evidence; for though she only came to speak as to Draper being at one place, which had nothing to do with Smith being concerned in the offence, yet her evidence would go to shew that the witness for the prosecution was mistaken as to Draper, and then if she was mistaken as to one it would weaken her evidence altogether, and by that means the witness proposed to be called by Draper might benefit her husband: The pri soners were all acquitted of the capital part of the charge, but found guilty of grand larceny, and the learned judge passed sen tence upon them: After the trial the learned judge had doubts whether he did right in rejecting the evidence of Draper's daughter, and therefore he submitted this case for the opinion of the judges: This case was considered in Easter term 1826 at a meeting of all the judges, and they all thought her not competent (except Graham B. and Littledale J.), and that the conviction was right. This case was cited by Gazelce J., and acted upon at a meeting of the judges in Hood's case, 1 Mood. 281., where, on an indictment against Hood and two other persons for stabbing with intent to prevent Hood's apprehension, it was held that the wife of one of the other prisoners was incompetent. against each other; Husband and wife cannot be witnesses against each other, by reason of the dissensions and distrusts that it would occasion, inconsistent with the happiness of married life and the peace of filies. 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. Polygamy, 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. Kin naird, 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. (b) They may be called to contradict each other. Their declara tions. And the reasoning upon which this decision is founded is equally strong to shew, that one may be 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. Ibid. The declarations of the husband or wife are subject to the same rule as their evidence. Ibid. Upon an indictment for forcible abduction and marriage of a Exceptions. woman, she may be a witness for the crown: Gill. 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. & M. 198., ruled by Best C. J. (But see Beveridge v. Minter, 1 Carr. & P. 364.) (6) Although, perhaps, she would not have have been compellable to give evidence tending to criminate her husband, 1 Phil. Ev. 75. Wakefield's case. Indictment for personal vio vence. does not fall within the general rule, than an exception to it; for The wife is also admitted as a witness against her husband, er necessitate, 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, 1 Leach. 500. John's case, 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. Ñ. P. 287. And the wife is always permitted to swear the peace against her husband. Bull, N. P. 287. And her affidavit has been permitted 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 highest authorities. 1 Hale, P. C. 301. 2 Hawk P. C. c. 46. § 77. Bull. N. P. 287. Rex v. Serjeant, 1 Ry. & 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. c. 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." Not competent in cases where there is no personal in But this rule seems to be confined to cases where the charge affects the liberty or the person of the wife. Thus it has been decided, that in an indictment for a conspiracy in procuring a lady, 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. but there are high authorities to the contrary; 1 Hale, P. C. 301., 1 Brown. 47. as a wife. 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 considered 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, 1 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. husband. 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 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 taken; how to be supported; how repelled. Mode of examination on voire dire. dire (a), and it was too late after he was sworn in chief. Turner The party against whom a witness is called may examine him respecting his interest on the voire dire, or may call another witness, 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. (b) 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 objection of interest by independent evidence, and without putting 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. An examination on the voire dire is allowed to be conducted without strict regard to the general rule of evidence, which requires 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. (b) By Lord Hardwicke in Lord Lovat's case, 9 St. Tr. 647. See also the observations of Parker C. J. in Rex v. Muscot, 10 Mod. 198., in which case it was asserted, but overruled, that in criminal cases there could be no examination on the voire dire. |