"If, however, where a defendant's wife is called, and the facts of which she has knowledge are unfavorable to the husband, it would be proper for her to object to testifying, and we think she could not be compelled to testify against her objection. If she testified, and her testimony was unfavorable to her husband, so that it appeared that the indictment was found, in whole, or in part, upon her testimony, possibly the indictment might be quashed upon that ground. But the defendant should judge whether her testimony was favorable or unfavorable before proceeding to trial, and moved to quash if he thought there was ground for it. We think it too late to raise an objection of this kind after conviction."

The Texas Code provides that "the husband and wife may in all criminal actions be witnesses for each other, but they shall in no case testify against each other except in a criminal prosecution for an offense by one against the other." Tex. Code Crim. Proc. art. 735. In construing this statute with reference to the extent to which the right of cross-examination may be carried by the state where one spouse has been called to testify for the other, it is said that "whilst it is true the spouse is subject to cross-examination like any other witness it is also true that such crossexamination must be confined strictly to the matters about which she has testified on the examination in chief." Washington v. State, 17 Tex. App. 197, citing Creamer v. State, 34 Tex. 174. and Greenwood v. State, 35 Tex. 587; Johnson v. State, 28 Tex. App. 17.

In Illinois the statute directs that no husband or wife shall be rendered competent to testify for or against each other as to any transaction or conversation occurring during the marriage, whether called as a witness during the existence of the marriage, or after its dissolution, except in cases where the wife would, if unmarried, be plaintiff or defendant, or where the cause of action grows out of a personal wrong or injury done by one to the other, or grows out of the neglect of the husband to furnish the wife with a suitable support; and, except in cases where the litigation shall be concerning the separate property of the wife, and suits for divorce, and except also in actions upon policies of insurance or property, so far as relates to the amount and value of the property alleged to be injured or destroyed, or in actions against carriers, so far as relates to the loss of property and the amount

and value thereof, or in all matters of business transactions where the transaction was had and conducted by such married woman as the agent of her husband, in all of which cases the husband and wife may testify for or against each other, in the same manner as other parties may, under the provisions of this act: Provided, that nothing in this section contained shall be construed to authorize or permit any such husband or wife to testify to any admissions or conversations of the other, whether made by him to her or by her to him, or by either to third persons, except in suits or causes between such husband and wife." Ill. Rev. Stat. 489, 5.

In Oregon the element of mutual consent appears: "In all criminal actions, where the husband is the party accused, the wife shall be a competent witness; but neither husband nor wife, in such cases, shall be compelled or allowed to testify in such case unless by consent of both of them, provided, that in all cases of personal violence upon either by the other, the injured party, husband or wife, shall be allowed to testify against the other." Hill, Ann. Law of Oregon, & 1366.

The phrasing of the New York statute is peculiar: "The husband or wife of a person indicted or accused of a crime is in all cases a competent witness, on the examination or trial of such person; but neither husband nor wife can be compelled to disclose a confidential communication, made by one to the other during their marriage." N. Y. Penal Code, § 715. In exposi tion of this provision is the case of People v. Hovey, 29 Hun, 382, a homicide of peculiar atrocity, and which was defended by one of the most eminent lawyers known to the criminal bar. The general term of the supreme court said: "It is urged on behalf of the appellant that the presumption must be that his wife was hostile to him, and that he was not, therefore, obliged to use her as a witness or to be subjected to any criticism because he did not call her. This view is fallacious. The presumption is that she would tell the truth, and the appellant must take the consequences of such presumption."

As late as 1884, the New York supreme court says: "The examination of the wife of the defendant as a witness against her husband was not error. She was not compelled to disclose any confidential communication passing between herself and her husband during their marriage, and within that limitation she was a

competent witness." N. Y. Penal Code, & 715. The case of People v. Hovey, 29 Hun, 382, 1 N. Y. Crim. Rep. 180, arose before the penal code took effect. People v. Petmecky, 2 N. Y.

Crim. Rep. 450.

The question as to how far the testimony of a husband, which may tend to criminate his wife, or the testimony of a wife which may tend to criminate her husband, is admissible in a collateral proceeding, is not satisfactorily settled by precedent. In the case of Rex v. Cliviger, 2 T. R. 263, it was thought that such testimony was inadmissible from reasons of public policy, to avoid dissensions between husband and wife. This was a case of settlement, where a marriage in fact had been proved, and, the husband having given testimony denying a previous marriage, it was held that the first wife could not be called to prove the same, as it would tend to criminate him in respect of two crimes,—bigamy and perjury. But in two cases subsequently decided, where the question was the same, except that the husband had not given testimony denying his previous marriage, it was held that the first wife was a competent witness to prove such marriage. Rex v. All Saints, 6 Maule & S. 194; Rex v. Bathwick, 2 Barn. & Ad. 639. In these two cases the rule declared in Rex v. Cliviger may be regarded as having been qualified, at least, so far as to recognize the competency of husband and wife as witnesses in collateral cases, where the testimony of the one of them who is called as a witness can criminate the other only when connected with other evidence.

In the case of State v. Dudley, 7 Wis. 664, on the trial of an indictment for adultery committed by the defendant with the wife of a man who had subsequently procured a divorce, it was held that the divorced husband was a competent witness to prove his marriage with his divorced wife. In State v. Marvin, 35 N. H. 22, on a similar indictment, the husband testified without objection to the marriage and to the fact of the adultery; but, being asked if he lived with his wife at the time of the trial, answered that he did not. To this last statement the defendant objected, but the objection was overruled, and it was held, on a motion to set aside the verdict, to have been properly admitted. We find no American decision, with the exception of the two above stated (if they can be deemed an exception) which sanctions the unqualified admissibility of such testimony in a collateral proceeding. It has been held in four different states, that, on the

trial of an indictment against a man for adultery, the husband of the woman with whom the crime is alleged to have been committed, is not a competent witness to prove the fact. State v. Gardner, 1 Root, 485; State v. Welch, 26 Me. 30, 45 Am. Dec. 94; State v. Wilson, 31 N. J. L. 77; Com. v. Sparks, 7 Allen, 534. In the last named case Merrick, J., in delivering the opinion of the court said: "It has never been determined that a husband or wife is admissible as a witness in any collateral proceeding, to testify directly to the commission of any criminal act of the other. Nor ought such testimony to be received in any proceeding or upon any trial; for, as nothing would be more likely to exasperate the parties and be the means of implacable discord and dissension between them, its admission would be a violation of that principle of public policy upon which the general rule of their exclusion as witnesses against the other is founded."

Let it be remembered that it is only where there has been a valid marriage that the parties are excluded from giving evidence for or against each other by the common law. Roscoe, Crim. Ev. 124; 1 Greenl. Ev. § 339; Whart. Crim. Ev. § 390. It has therefore been held in indictments for bigamy, after proof of the first marriage, that the second woman married is a competent witness against her husband, for the second marriage is void and she is no wife. To test this competency the woman may be examined on the voir dire as to this void marriage. Whart. Crim. Ev. §§ 395397; 1 East, P. C. 469; Seeley v. Engell, 13 N. Y. 542; State v. Gordon, 46 N. J. L. 432.

b. Exception Arising from Lunacy and Intoxication.—In District of Columbia v. Armes, 107 U. S. 519, 27 L. ed. 618, Mr. Justice Field formulates the rule on this branch of our subject as follows:

"It is undoubtedly true that a lunatic or insane person may, from the condition of his mind, not be a competent witness. His incompetency on that ground, like incompetency from any other cause, must be passed upon by the court, and to aid its judgment, evidence of his condition is admissible. But lunacy or insanity assumes so many forms and is so often partial in its extent, being frequently confined to particular subjects, whilst there is full intelligence on others, that the power of the court is to be exercised with the greatest caution. The books are full of cases where persons showing mental derangement on some subjects evi

dence a high degree of intelligence and wisdom on others. The existence of partial insanity does not unfit individuals so affected for the transaction of business on all subjects, nor from giving a perfectly accurate and lucid statement of what they have seen or heard.

"The general rule therefore is, that a lunatic or person affected with insanity is admissible as a witness if he have sufficient understanding to apprehend the obligation of an oath, and to be capable of giving a correct account of the matters which he has seen or heard in reference to the questions at issue; and whether he have that understanding is a question to be determined by the court, upon examination of the party himself, and any competent witnesses who can speak to the nature and extent of his insanity. Such was the decision of the Court of Criminal Appeal in England, in the case of Reg. v. Hill, 5 Cox, C. C. 259. There the prisoner had been convicted of manslaughter; and on the trial the witness had been admitted whose incompetency was urged on the ground of alleged insanity. He was a patient in a lunatic asylum, under the delusion that he had a number of spirits about him which were continually talking to him, but the medical superintendent testified that he was capable of giving an account of any transaction that happened before his eyes; that he had always found him so, and that it was solely with reference to the delusion about the spirits that he considered him a lunatic."

Peake lays down this proposition, which cannot fail to command general assent: "All persons who are examined as witnesses must be fully possessed of their understanding; that is, such an understanding as enables them to retain in memory the events of which they have been witnesses and gives them a knowledge of right and wrong; that, therefore, idiots and lunatics, while under the influence of their malady, not possessing this share of understanding, are excluded." p. 152. This principle necessarily excludes persons from testifying who are besotted with intoxication at the time they are offered as witnesses; for it is a temporary derangement of the mind; and it is impossible for such men to have such a memory of events, of which they may have had a knowledge, as to be able to present them fairly and faithfully, to those who are to decide upon contested facts. A present and existing intoxication, to a considerable degree, utterly disqualifies the person so affected to narrate facts and events in a way at all