§ 197. General Abrogation of Former Disqualifying Laws. Express legislation in many states has wholly abrogated former rules of disqualification by reason of crime, and a party may now show the record of conviction not because it renders the witness incompetent but merely for the purpose of impairing the credibility. For authorities sustaining this proposition, see general statutes of all the states.

§ 198. New York and California Rules Relating to the Subject. "A person heretofore or hereafter convicted of any crime is, notwithstanding, a competent witness, in any cause or proceeding, civil or criminal, but the conviction may be proved for the purpose of affecting the weight of his testimony, either by the record, or by his cross-examination, upon which he must answer any proper question relevant to that inquiry; and the party crossexamining is not concluded by the answer to such question.' N. Y. Penal Code, 8 714.

"This section abolishes a relic of the old rules disqualifying witnesses, which is contrary to the spirit of modern legislation upon the subject in this state, and has been abolished in England for fully a third of a century. The settled theory in regard to the competency of the witnesses now is, that the court or jury shall have all possible light thrown upon the facts, and judge for itself what credence to give to the evidence offered. The exclusion of felons as witnesses has been justified by the argument (1) that their testimony is unreliable and unsafe, and (2) that it is a proper punishment for their crimes. Upon neither theory can it be justified." Per Throop, N. Y. Code Commissioner.

"The following persons cannot be witnesses:

"1. Those who are of unsound mind at the time of their production for examination.

"2. Children under ten years of age, who appear incapable of receiving just impressions of the facts respecting which they are examined, or of relating them truly.

"3. Parties or assignors of parties to an action or proceeding, or persons in whose behalf an action or proceeding is prosecuted, against an executor or administrator upon a claim or demand against the estate of a deceased person, as to any matter of fact occurring before the death of such deceased person." Amendment, approved April 16, 1880; Cal. Code Civ. Proc. § 1880.

The California Code of Civil Procedure embodies the best feat

ures of modern legislation on this topic of competency. Section 1879 of that act crystalizes the juridical sentiment upon the subject, and it may be quoted as typical of the law as at present understood by the judiciary of the United States.

The following is the context of the section referred to:

"All persons, with exception, who, having organs of sense, can perceive, and perceiving, can make known their perceptions to others, may be witnesses. Therefore, neither parties nor other persons who have an interest in the event of an action or proceeding are excluded; nor those who have been convicted of crime; nor persons on account of their opinions on matters of religious belief; although in every case the credibility of the witness may be drawn in question, as provided in Cal. Code Civ. Proc. 1879, § 1847."

199. Theory of Chief Justice Appleton.-The Hon. John Appleton, for many years chief justice of the state of Maine, in the preface to his valuable work on "The Rules of Evidence," states the result of his research and experience to be: "1. All persons without exception, who having any of the organs of sense, can perceive, and perceiving can make known their perceptions to others, should be received and examined as witnesses. 2. That objections may be made to the credit but never to the competency of witnesses. 3. That while the best evidence should always be required, the best existing evidence should not be excluded because it is not the best evidence of which the case in its nature is susceptible." The learned author goes on to say that many of the reforms pointed out in his essay have been partially adopted. Interest and infamy, in very many states, have ceased to be ground for the exclusion of testimony. A limited admission of the testimony of the husband and wife has been allowed in cases where one or the other is a party. The parties in civil cases, with greater or less restrictions upon their testimony, have been received or compelled to testify in their own cases. In offenses of the lowest grade of criminality the accused in one state (and since then in others) has been admitted as a witness in his own behalf. But incompetency from defect or from a want of religious belief, is still the law in most of the states. The law as to con

fessions and hearsay continues in a chaotic condition. Different courts and the same court on different occasions, employ differing modes of extracting proofs. So far as changes have been made,

their practical working in the administration of the law has been such as to make it a matter of astonishment how courts could have ever hoped to administer justice, when the evidence now received was excluded.

As to whether a record of conviction of a witness for a felony, where it does not disqualify, is evidence in a civil action for the purpose of impeachment, quære.

In the case of People v. Noyes, tried at the Livingston circuit in November, 1876, it was held, that a person convicted of felony in the state of Michigan, was not thereby rendered incompetent to testify, but that the fact of the conviction went only to his credibility. To the same effect is the case of the Com. v. Green, 17 Mass. 515, where the question received great consideration, and an able opinion was written by Parker, Ch. J., which was concurred in by the whole court.

It was decided in the case of Carpenter v. Nixon, 5 Hill, 260, that the record of the conviction of a witness of petit larceny, was admissible for the purpose of affecting the credit of such witness, and that the refusal to receive it for that purpose was error.

In Newcomb v. Griswold, 24 N. Y. 298, the competency of such evidence for that purpose is admitted, but it is held that the fact of the conviction cannot be proved by parol, even by the witness himself upon cross-examination, but must be established by the general rule laid down in all the elementary works upon evidence, that particular facts cannot be proved to effect the credit of a witness, but that the examination must be confined to his general reputation.

The entire discussion is of trifling importance in view of the very general abrogation of the old exclusionary rules which denied to convicts the privilege of a witness. This disqualification has been removed in all of the New England states, in California, Colorado, Delaware, Georgia, Illinois, Indiana, Iowa, Kansas, Michigan, Minnesota, Missouri, New Jersey, New York, North Carolina, Vermont, Virginia, Washington and Wisconsin. A lingering survival of the rule is found in some of the southern states, notably, Florida, Mississippi and South Carolina.

§ 200. Exceptions to the General Rule.

a. Husband and Wife.-There are particular relations in which it is the policy of the law to encourage confidence, and to preserve

it inviolate; therefore a person cannot be examined as a witness in the following cases:

A husband shall not be examined for or against his wife without her consent, nor a wife for or against her husband without his consent; nor can either, during the marriage afterwards, without the consent of the other, be examined as to any communication made by one to the other during the marriage. But the exception does not apply to a civil action, suit, or proceeding, by one against the other, nor to a criminal action or proceeding for a crime committed by one against the other;

An attorney shall not, without the consent of his client, be examined as to any communication made by the client to him, or his advice given thereon, in the course of professional employment;

A priest or clergyman shall not, without the consent of the person making the confession, be examined as to any confession made to him in his professional character, in the course of discipline, enjoined by the church to which he belongs;

A public officer shall not be examined as to communications made to him in official confidence, when the public interest would suffer by the disclosure. Lucas v. State, 23 Conn. 18; William v. State, 53 Ga. (Supp.) 85; Byrd v. State, 57 Miss. 243, 34 Am. Rep. 440; Downing v. Rugar, 21 Wend. 178, 34 Am. Dec. 223; Wilke v. People, 53 N. Y. 525; People v. Briggs, 60 How. Pr. 17; People v. Moore, 65 How. Pr. 177; People v. Crandon, 17 Hun, 490; Taulman v. State, 37 Ind. 353; Hubbell v. Grant, 39 Mich. 641; State v. Houston, 50 Iowa, 512; Iowa Code, § 3641; Dill v. State, 1 Tex. App. 278; State v. Douglass, 20 W. Va. 770. As to when he can testify for his client, see Chappell v. Smith, 17 Ga. 68; Foster v. Hall, 12 Pick. 89, 22 Am. Dec. 400; Hatton v. Robinson, 14 Pick. 416, 421; Landsberger v. Gorham, 5 Cal. 450; Gower v. Emery, 18 Me. 82; Satterlee v. Bliss, 36 Cal. 507; Toomes Estate, 54 Cal. 509; 3 Rev. Stat. (6th ed.) 671, § 119; Code Civ. Proc. §§ 834, 836; Edington v. Mutual L. Ins. Co. 67 N. Y. 185; Cahen v. Continental L. Ins. Co. 69 N. Y. 308; Grattan v. National L. Ins. Co. 15 Hun, 77; Hildreth v. Shepard, 65 Barb. 265; Wolstenholme v. Wolstenholme File Mfg. Co. 3 Lans.

467.

It is admitted in all the cases that the wife is not competent, except in prosecution for an offense against her, directly to crimi

nate her husband or to disclose that which she has heard from him in their confidential intercourse. The rule which protects an attorney in such a case, is founded upon public policy, and may be essential to the administration of justice. But this privilege is the privilege of the client and not of the attorney. The rule which protects the domestic relations from exposure, rests upon considerations connected with the peace of families. And it is conceived that this principle does not merely afford protection to the husband and wife, which they are at liberty to invoke or not, at their discretion, when the question is propounded, but it renders them incompetent to disclose facts in evidence in violation of the rule. And it is well that the principle does not rest on the discretion of the parties. If it did, in most instances it would afford no substantial protection to persons uninstructed in their rights, and thrown off their guard and embarrassed by searching interrogatories.

As authority for the foregoing text and as illustrating the principle there stated we append the statutory law of several states with some pertinent judicial comment.

The Iowa Code provides as follows:

❝g 3641. The husband nor wife shall in no case be a witness for or against the other, except in a criminal proceeding for a crime committed by one against the other, or in a civil action or proceeding one against the other, but they may in all civil or criminal cases, be witnesses for each other."

Commenting upon this statute in State v. Houston, 50 Iowa, 512, the court said: "Amelia M. Houston, wife of the defendant, was examined and testified before the grand jury. It is in sisted by the defendant that that fact rendered the indictment void, and that the verdict cannot be allowed to stand. The wife cannot be a witness against her husband except in a criminal prosecution for a crime committed against her, and in a civil action brought by one against the other, but she may be a witness for him in all cases. Iowa Code, 3641. When the grand jury have reason to believe that evidence within its reach will explain away the charge, it may order such evidence to be provided. Iowa Code, § 4276.

"A witness, then, called before the grand jury is not necessarily called against the defendant. It might be the defendant's privilege that his wife should be called.