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Not competent, even by consent.
offences. (u) 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. (v)
In a civil case Lord Hardwicke would not suffer a wife to give evidence for her husband, even by consent of the other party. (w) 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, (x) on the ground that the confidence which subsisted between them at the time shall not be violated in consequence of any future separation. (y) The rule, however, 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. It was, indeed, once held, in Rex v. Cliviger, (2) 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. (a) But the rule laid down in the case of Rex v. Cliviger was much discussed in the case of Rex v. All Saints, Worcester, (b) 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
(u) 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. 619. Reg. v. Sills, 1 C. & K. 494, July, 1844. Reg. v. Moore, 1 Cox, C. C. 59, August, 1843. Reg. v. Bartlett, 1 Cox, C. C. 105, April 1844. Reg. v. Denslow, 2 Cox, C. C. 230, A.D. 1847.
(v) Rex 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.
(w) Cas. temp. Hardw. 264.
received in evidence to support an indictment against her husband for bigamy. (c)
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. (d) In Rex 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 Rex 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 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.' (e)
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 show that his wife had acted criminally, but that count contained no charge against her. (ƒ)
Where, however, the husband has either been convicted or acquitted of the same felony, respecting which the wife is called
(c) Rex 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, ante, p. 316.
(d) 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.
(e) Rex v. George Gleed, Gloucester Lent Ass. 1832. MSS. C. S. G.
(f) Reg. 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 wife is not competent to
prove that a
prisoner committed a felony with her hus band.
The evidence of a husband although it tends to in
culpate his wife in the
same charge with the prisoner
the evidence is given.
Where husband has
been convicted or acquitted
of a felony,
wife may be examined to
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 comagainst another petent witness for the prosecution. (9) 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. (h) 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. (i) And in Thurtell's case Mrs. Probert was examined as a witness against Thurtell after her husband was acquitted. (j) 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. (k)
They may be called to contradict each other.
Indictment for abduction.
And the reasoning upon which the decision in Rex v. All Saints, Worcester, was founded, is equally strong to show 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 (1)
Upon an indictment for forcible abduction and marriage of a woman, she may be a witness for the Crown, (n) or the prisoner; (0) 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. (p) 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. (9) But there are very considerable authorities to the contrary. (1) 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
(g) Reg. v. Williams, 8 C. & P. 284. Alderson, B.
(h) Reg. v. Thompson, 3 F. & F. 824, Keating, J.
(i) Reg. v. Glassie, 7 Cox, C. C. 1. Lefroy, C. J., and Monahan, C. J.
(j) Per Alderson, B., Reg. v. Williams, supra.
(k) Per Alderson, B. Hawkesworth v. Showler, 12 M. & W. 45.
(2) 1 Phill. Ev. 80, 7th ed.
(n) Gilb. Ev. 120. 1 Hale, P. C. 301, 302. 2 Hawk. c. 46, s. 78. Fulwood's
(0) Rex v. Perry, at Bristol, 1794, cited by Abbott, C. J., in Rex v. Serjeant, R. & M. N. P. C. 354. 1 Hawk. P. C. c. 41, s. 13.
(p) Gilb. Ev. 120. 1 Hale, P. C. 302, 660, 661. Bull. N. P. 286.
(q) 1 Hale, P. C. 302, 661. 1 Phill. Ev. 84, 7th ed. 2 Stark. Ev. 553.
(r) 4 Blac. Com. 209. 1 East, P. C c. 11, s. 5, p. 454.
witness for the prosecution, although there was no evidence to support that part of the indictment which charged force. (s)
The wife is also admitted as a witness against her husband, ex Indictment necessitate, in a prosecution of him for offences against her per- for personal son. (t) So her dying declarations are admissible against him in the violence. case of murder. (u) In an indictment of William Whitehouse, (v) 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 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 Rooke, J., afterwards delivered the opinion of the twelve judges that the evidence had been rightly admitted. Holroyd, J., however, said he thought the wife could only be admitted to prove facts which could not be proved by any other witness. (w) So on an indictment against a man for beating his wife, she was held competent. (2) And the wife is always permitted to swear the peace against her husband. (y) And her affidavit has been permitted to be read on an application to the Court of King's Bench 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 permit her to be a witness to ground a prosecution, and not afterwards to be a witness at the trial. (2) And it seems to be now settled, that in all cases of personal injuries committed by the husband and wife against each other, the injured party is an admissible witness against the other. (a)
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 ward in chancery, to marry, the wife was not a good witness for one of the co-defendants, if her evidence might enure to the acquittal of her husband; (b) and since she could not be admitted in favour of her husband, it follows necessarily that she could not be a witness against him. (c) So on an indictment against the wife
(s) Rex v. Waekfield, 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 shown either by examining her on the voire dire, or by other witnesses, and for the defendant it was proposed to show 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.
(t) 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. Č. 301. 2 Hawk. P. C. c. 46, s. 77. Bull, N. P. 287. Rex v. Serjeant, R. & M. 354. Reg. v. Jelly
man, 8 C. & P. 604. 1 East, P. C. c.
(u) Woodcock's case, 1 Leach, 500.
(w) See Reg. v. Pearce, 9 C. & P. 667.
(x) By Lord Raymond on the authority
(y) Bull. N. P. 287.
(a) East, P. C. c. 11, s. 5, p. 455.
Not competent in cases
where there is no personal
Competency of a woman living as a wife.
A wife com
is so for her busband.
of W. S. and others, for a conspiracy in procuring W. S. to marry,
In the case of high treason it has been said that a wife shall be admitted against her husband, because the tie of allegiance is more obligatory than any other; (f) but there are high authorities to the contrary. (g)
Whether a woman who has cohabited with a man as his wife, but who is ready to swear she is not married to him, will be allowed to give evidence on the part of the man, has been considered a doubtful question. (h) But it seems now to be settled that the rule relates to persons who have entered into the relation of husband and wife; and does not extend to those who, not being married, have lived together and cohabited as man and wife. (i) Thus where a woman had been married to a man whom she had not seen for thirty years, and then married again, but afterwards found that the man she had first married was alive; as the second marriage was a mere nullity, she was held competent to give evidence of statements made by her second husband during the time they cohabited. (j) So where the prisoner had married his deceased wife's sister, Erle, J., held that the wife was a competent witness against him, as the marriage was void, and that the wife might prove her relationship to the former wife on the voire dire. (k) So a kept mistress, who has passed by the name and appeared in the world as the wife of her protector, has been held to be a competent witness for him. (1)
In the case of Rex v. Perry, Gibbs, C. J., stated that he could petent against see no distinction between admitting a wife for and against her husband. The King v. Perry,' said Abbott, C. J., in Rex v. Serjeant, (m) was much talked about at the time, and C. J. 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.'
Objections to competency, when to be
Anciently the rule was, that if there were any objection to the competency of a witness, he should be examined on the voire dire, (n) and it was too late after he was sworn in chief. (o) But for the convenience of the court, and the furtherance of justice
(d) Rex v. Serjeant, R. & M. N. P. R.
(g) 1 Hale, P. C. 301.
1 Brown, 47.
(h) Campbell v. Twemlow, 1 Price, 81. Per Richards, B., 1 Price, 83.
() 1 Phill. Ev. 69.
(j) Wells v. Fletcher, 5 C. & P. 12.
S. C. as Wells v. Fisher, 1 M. & Rob. 99.
(k) Reg. v. Young, 5 Cox, C. C. 296. See Reg. v. Chadwick, 11 Q. B. 173, ante, p. 270. Reg. v. Blackburn, 6 Cox, C. C. 333.
(7) Batthews. Galindo, 4 Bingh. R. 610. Reg. v. Young, 2 Cox, C. C. 291, Erle, J. S. P.
(m) R. & M. N. P. R. 354.
(n) 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 Blount's by the matter in controversy. Law Dictionary.
(0) Turner v. Pearte, 1 T. R. 719.