EVIDENCE. See MUNICIPAL CLAIMS; WITNESSES. 7. And attachments against defaulting witnesses. 8. Party injured may sue. 9. Proceedings on refusal to testify. 10. After punishment of witness for refusal to produce documents required by a duces tecum, parol evidence may be received. 11. Powers of commissioners of other states. 12. Councils of Philadelphia may compel the attendance of witnesses. And production of books and papers. False swearing to be deemed perjury. Mileage of witnesses. 13. Proceedings on refusal to appear and testify. Attachment for contempt. 14. No person to be excused from testifying. 15. Contempt to be a misdemeanor. Punishment. II. WITNESSES IN CRIMINAL CASES. 16. Witnesses entitled to restitution to be competent. 17. Expert witnesses competent in prosecutions for forgery. 18. Defendants may examine witnesses at preliminary hearing. 19. When evidence for defendant is not admissible. All persons to be competent witnesses. 20. Conviction of perjury to disqualify a witness. 21. Husband and wife not to testify against each other. Exceptions. 22. Confidential communications between husband and wife. 23. Between counsel and client. 24. Notes of examination at a former trial. 25. Witnesses not to be imprisoned except in certain cases. III. WITNESSES IN CIVIL PROCEEDINGS. 26. Inhabitants of school districts may be wit nesses. 27. Interest not to disqualify. Exceptions. 28. Conviction of perjury to disqualify. 29. Confidential communications between husband and wife. 30. Husband and wife not to testify against each other. Exceptions. 31. Confidential communications between counsel and client. 32. Where one party is dead, the surviving or remaining party to be incompetent. 33. Persons incompetent under certain clauses not to become competent by the general language of placitum 30. 34. Testimony against interest. 35. Adverse party may be compelled to testify. 36. Testimony may be taken by commission or deposition. 37. Notes of examination in former proceeding. 38. Witnesses may be compelled to testify; but not to criminate themselves. Neglect of defendant to testify in criminal cases. 39. Repeal of prior acts. 40. When act to go into effect. 41. When surviving party may testify. 42. Testimony may be taken by commission or deposition. 45. Depositions may be read in subsequent causes between the parties for the same subject-matter. 46. Depositions, &c., may be taken before United States commissioners. V. OF EXEMPLIFICATIONS. 47. Exemplifications of papers duly recorded to be evidence. 48. Of justice's bond. 49. And commission. 50. Certain records to be kept by the registers of Mercer and Crawford counties. 51. Orphans' courts of other counties may direct similar records to be made. 52. Exemplifications thereof to be evidence. 53. Exemplifications of patents, and deeds of sheriffs, &c., to be evidence. 54. Of deeds of county commissioners. 55. Of assignments of mortgages, and letters of attorney authorizing satisfaction of mortgages. 56. And of certain releases. 57. How records of justices of the peace of other states to be authenticated. 58. Certified copies of powers of attorney, remaining in the public office of Great Britain, to be evidence. Affidavit. Consular certificate. 59. Certified copies of receipts given by attorneys or agents. 60. Certified copies of reports, book-entries, &c. 61. Consular seal to prove itself. 77. Registers of marriages, births and burials, kept by religious societies in the state, to be evidence. 78. Registers of burials out of the United States to be evidence. How to be certified. 79. Translation by consul, to be primâ facie evidence. 80. Registers of baptisms and marriages by a bishop, when evidence. 81. Registers of marriages, births and deaths. 82. Official acts of notaries public, duly certified, to be evidence. 83. To be evidence of the facts in relation to notice. May be contradicted. 84. Certificates of foreign notaries to be evidence. How verified. 85. Prothonotary's certificate of acknowledgment of sheriff's deed, to be evidence, although not under seal. 86. Seal of officer, certifying to acknowledgment of deed, to be primâ facie evidence. VIII. JUDGMENTS OF PRIZE COURTS. 87. Judgments of prize courts not to be conclusive evidence except as to the acts of the court. I. Of the means of compelling the production of evidence. 3 Sm. 303. 1. The supreme court and several courts of common pleas in this state shall 27 Feb. 1798 § 1. have power(k) in any action(?) depending before them, on motion, (m) and upon good and sufficient cause shown, by affidavit or affirmation,(n) and due notice Courts may require thereof being given,(o) to require the parties, (p) or either of them, to produce (q) parties to produce books and papers. books of writings in their possession or power, which contain evidence pertinent to the issue;(r) and if either party shall fail to comply with such order, and to On neglect or reproduce such books or writings, (s) or to satisfy said courts why the same is not fusal, judgment to in the party's power so to do,(t) it shall be lawful for the said courts, if the party such party. so refusing shall be a plaintiff, to give judgment for the defendant as in cases of nonsuit,(u) and if a defendant, to give judgment against him or her by default, as far as relates to such parts of the plaintiff or plaintiff's demand, or the defendant or defendant's defence, to which the books or papers of the party is alleged to apply.(e) be given against P. L. 92. 2. In all cases where a commission shall be issued from, or a rule be taken in 26 Feb. 1831 § 1. any court of record in this commonwealth, or from any justice of peace or alderman, under the act, entitled "An act to amend and consolidate with its several (k) This act does not take away the common-law principle, by which parol evidence is admitted against a party who refuses to produce books and papers in his possession, after reasonable notice. Alexander v. Coulter, 2 S. & R. 496. Worman v. Boyer, 14 Ibid. 212. McKellip v. McIlhenny, 4 W. 317. (7) It does not extend to actions of slander, or other actions founded on tort. Morgan v. Watson, 2 Wh. 10. And see United States v. Twenty-eight Packages, Gilp. 306. But this rule is confined to cases of tort which involve penalty or forfeiture. Moelling v. Lehigh Coal and Navigation Co., 9 Phila. 223. (mi) See Thompson v. Selden, 20 How. 195. (n) Every order to produce papers, under this act, must be founded on a previous affidavit, which, as the law is highly penal, should set forth with precision every fact necessary to authorize the court to proceed. Rose v. King, 5 S. & R. 244. It should describe, with reasonable certainty, the books or papers alleged to be withheld, and contain an averment that the deponent verily believes the documents required are material to the issue, and exclusively in the power of the adverse party. Wright v. Crane, 13 S. & R. 450. Wills v. Kane, 2 Gr. 47. It need not, however, be positive; it is sufficient, if there be laid before the court probable ground for belief, and the opposite party must then produce the document, or satisfy the court that it is not in his power to do so. Wright v. Crane, 13 S. & R. 447. An ex parte affidavit is sufficient. United States v. Twenty-eight Packages, Gilp. 306. See Jacques v. Collins, 2 Bl. C. C. 23. Finch v. Rikeman, Ibid. 301. (0) The party is to have due notice of the motion, and as he is to come prepared to contest the truth of the facts, he ought to have the same length of time, previously to the hearing, as would be sufficient for preparation for the trial of an issue before a jury. Rose v. King, 5 S. & R. 244. See Geyger v. Geyger, 2 Dall. 332. Elliott v. Ruddach, 1 T. & H. Pr. § 654. The notice should describe the paper with reasonable certainty. Rose v. King, 5 S. & R. 241. Wills v. Kane, 2 Gr. 47. And should state, that on a failure to produce, the court will be moved to award a nonsuit or judgment, as the case may be. Bas v. Steele, 3 W. C. C. 381. Any objection to the order must be made on the return of the rule. Megargee v. Insurance Co., 15 Phila. 226. (p) The rule may be obtained against executors. Kuhn v. Ellmaker's Executors, 1 Clark 318; and when such rule is taken upon an administrator, it is no answer to it, that he is merely a nominal party, auxiliary to a foreign administrator, and having no custody of the papers; if the principal administrator refuse to give the party here the means of complying with the order, the estate must abide the consequences. Elliott v. Rudduch, 1 T. & H. Pr. § 654. The order should be made on the party on record, and is bad, if directed to a third person, though he be the party's agent. Rose v. King, 5 S. & R. 244. (q) The order is to produce them on the trial; the court will not make an order to produce them before a magistrate on the taking of a deposition. Thomas v. Smith, 1 T. & H. Pr. § 610. Nor before an examiner. Levick v. Diffely, 13 W. N. C. 59. The party cannot be called on to produce them, until the trial has com menced. Hylton v. Brown, 1 W. C. C. 298. But see Arrott v. Pratt, 2 Wh. 566. (r) Where the court have made an order for the production of certain writings on the trial, the judge at nisi prius cannot inquire whether they are pertinent to the issue, or whether, if produced, they would or would not be evidence. Tuttle v. Mechanics' and Tradesmen's Loan Co., 6 Wh. 216. But when produced, if incompetent evidence, they may be excluded from the jury. George v. George, 1 T. & H. Pr. § 657. The court will not order that the paper produced be read without further identification. Strawn v. Park, 1 Phila. 104. Hylton v. Brown, 1 W. C. C. 343. Rhoades v. Selin, 4 Ibid. 715. Blight v. Ashley, Pet. C. C. 22. Philadelphia Bank v. Officer, 12 S. & R. 49. The court will order the production of the books themselves (not copies), if necessary, without regard to the convenience of the parties. Thompson v. Taylor, 9 W. N. C. 169. (s) If deeds be on record, the court will not grant a rule on the party in whose possession the originals are, to produce them, unless a special reason be assigned. Geyger v. Geyger, 2 Dall. 332. (t) The rule to produce books and papers, when absolute, is only a rule nisi. Gilpin v. Howell, 5 P. S. 55. Coleman v. Spencer, 1 Phila. 271. Dunham v. Riley, 4 W. C. C. 126. It is a feature of chancery practice as to discovery, and governed by the same principles. Hurd v. Ryan, 1 T. & H. Pr. § 657. Cottrell v. Warren, 18 P. S. 487-9. Finch v. Rikeman, 2 Bl. C. C. 301. See McNair v. Wilkins, 3 Wh. 551. Iasigi v. Brown, 1 Curt. C. C. 401. In answer to the rule, the respondent must say, whether the papers were ever in his possession, and how they have passed out of his control. Bickford v. Ice Co., 13 Phila. 67. The party's agent is competent to show, why the papers required are not produced in court. Silliman v. Molloy, 4 Phila. 44. On the trial, the party who has obtained the order is not required, in the first place, to offer proof that the opposite party is in possession of the document called for; the party called upon must discharge himself of the consequences of not producing it, by affidavit, or other proof, that he has it not in his power to produce it. Hylton v. Brown, 1 W. C. C. 298. And this may be met by contrary proof, according to the rules of equity. Bas v. Steele, 3 Ibid. 381. (u) A nonsuit will not be granted, if the non-production be satisfactorily explained, nor where the plaintiff is entitled to recover upon other counts of his narr. Foster v. Sandeman, 5 Phila. 133. See Iasigi v. Brown, 1 Curt. C. C. 401. (v) If the rule be made absolute, and the papers ordered be not produced at the trial, the judge may withdraw a juror, and the whole proceedings appearing on the postea, the court in banc may enter judgment according to the act. Mc Dermot v. United States Insurance Co., 1 S. & R. 357. Or, if it be the defendant who is in default, the court may discharge the jury, award judgment against him, and make an order in the nature of a writ of inquiry, to assess the plaintiff's damages. Wright v. Crane, 13 S. & R. 447. Or the damages may be ascertained by a writ of inquiry. Cowles v. Cowles, 2 P. & W. 139. See Wills v. Kane, 2 Gr. 47. 26 Feb. 1881 § 1. supplements the act, entitled 'An act for the recovery of debts and demands not P. L. 92. Commissioners may issue subpœnas. Ibid. § 2. And attachments exceeding one hundred dollars, before a justice of peace, and for the election of 3. In case of the non-attendance of any such witnesses, it shall be lawful for such commissioner, or person or persons duly authorized as aforesaid, on proof, against defaulting by oath or affirmation, of the due service of the subpoena, to issue process of attachment against the defaulting witness; whereupon the same proceedings shall be had, as are used and allowed in like cases, in the courts of record in this commonwealth.(x) witnesses. Ibid. § 3. 4. The party injured by such non-attendance shall also be entitled to the same remedies at law, against the person subpoenaed, as are provided when a subpoena Party injured may is issued from a court of record. sue. Ibid. § 4. Proceedings on refusal to testify. 8 April 1833 § 18. P. L. 308. Common pleas may issue sub poenas, on receipt of letters rogatory. Ibid. § 19. And attachment 5. If the person subpoenaed shall attend, but refuse to testify, he shall be liable to the same proceedings on the part of the commissioners or persons authorized as aforesaid, as if he had appeared and refused to testify in a court of record. (y) 6. In all cases where letters rogatory shall be issued out of any court of any one of the several states composing the United States, or out of any court of any territory of the said United States, (2) requesting any court of common pleas in this commonwealth, to afford its aid in the examination of any witness or witnesses within the limits of the jurisdiction of such court of common pleas, it shall be competent for such court of common pleas, to issue subpoenas to such witnesses as may be required by any party concerned, requiring their attendance either before such court of common pleas, or before a commissioner or commissioners, to be by said court of common pleas named, at a certain hour and place therein designated, having regard to the distance of such witness or witnesses, and under a penalty not exceeding one hundred dollars. 7. In case of the non-attendance of any such witness or witnesses, it shall and may be lawful for such court of common pleas, on due proof of the service of the against defaulting subpoena, to issue process of attachment against the defaulting witness or witnesses, and thereupon the same proceedings shall be had, as are used and allowed in like cases in the courts of record in this commonwealth. witnesses. Ibid. § 20. Party injured may sue. bid. § 21. 8. Any party injured by such non-attendance shall also be entitled to the same remedies at law, against the person subpoenaed, as are provided where a subpoena is issued from a court of record of this commonwealth, in a cause pending therein. 9. If any person subpoenaed under this act shall attend, but refuse to testify, he or she shall be subject and liable to the same proceedings on the part of the Proceedings on re- said courts of common pleas, as if he or she had refused to testify in a cause pending in any court of record of this commonwealth.(a) fusal to testify. 22 April 1846 § 3. P. L. 483. After punishment of witness for refusal to produce documents, parol evidence may be received. 29 March 1860 § 1. P. L. 341. 10. In all cases wherein any person has been or may be subpoenaed(b) with a subpæna duces tecum, requiring the production of any title-papers or other documents whatsoever, on the trial of any suit, and said person has or shall refuse to produce any such papers or documents, and for such refusal has been or may be attached and imprisoned by the court, and subsequently discharged, persisting in such refusal, parol evidence shall be received in relation to the existence and contents of such papers and documents. 11. Any commissioner or commissioners appointed by any court of the United States, or of any state, district or territory in the United States, to examine or Powers of commis- take the testimony of any witness within this commonwealth, shall be invested with all the powers and authorities which are by law vested in commissioners appointed for a like purpose by the district court of Philadelphia, under the laws of this commonwealth.(c) sioners of other states. (w) See tit. "Commissioners to take Testimony." (x) A witness in contempt for not obeying a subpœna can only be punished by fine. Commonwealth v. Newton, 1 Gr. 453. (y) Though the alderman or commissioner may commit a witness refusing to testify, yet, where the right of the party to compel him to answer is a doubtful one, the proper course is to report the question for the action of the court; in which case, the party laying a proper ground, by affidavit, may obtain, by special motion, a subpoena directed to the witness, to appear and testify at the bar of the court, upon which an attachment may issue, or the witness be committed, according as the circumstances require. Pfiel v. Elmes, 1 T. & H. Pr. § 611. (2) The court will not inquire whether the letters rogatory are issued according to law and the practice of the court from whence they purport to come; but where such objection is made, they will give an opportunity to the party objecting, to apply to that tribunal to have them vacated. McKenzie's Case, 2 Pars. 227. (a) When letters rogatory are regularly issued, the court will compel the witnesses to testify, and will not examine into the relevancy of the testimony. McKenzie's Case, 2 Pars. 227. (b) An action will lie for damages against a material witness who absents himself without any excuse. McGlinsey v. McGlinsey, 1 T. & H. Pr. § 649. Hasbrouck v. Baker, 10 Johns. 248. Lane v. Cole, 12 Barb. 680. And see Muscott v. Runge, 27 How. Pr. 85. (c) A commissioner of another state has no power to enforce the attendance of witnesses by attachment. of witnesses. 12. It shall be lawful for the councils of cities of the first class, or any com- 17 May 1883 § 1. P. L. 82. mittee of the same, or either branch thereof, to apply to any judge of the court of common pleas of the county in which said cities are situated, who may, upon Councils of Philaaffidavit of proper and sufficient cause being made, issue subpoenas in the name delphia may comof the commonwealth of Pennsylvania, to any person or persons residing in said pel the attendance commonwealth, to appear before such councils, or either branch thereof, or any committee of the same, as witness, to testify their knowledge concerning any matters of inquiry which may be required of them, relating to the management and accounts of any of the departments of such cities, or of any other matters which may be subject to the supervision of the councils, or either branch thereof; and also, whenever it may be deemed necessary, to produce any books and paper And production of writings, in the possession or control of such person or persons, as may contain books and papers. evidence pertinent to such inquiries. Any person so called as a witness may be False swearing to examined under oath, and shall be liable to indictment, conviction and punishment be deemed perfor perjury, in the same manner and to the same extent as if the witness had been jury. called and examined before any committee of the legislature of this commonwealth, or in any judicial proceeding before any of the courts thereof, in accord ance with existing laws: Provided, That the person or persons outside of cities of Mileage of witthe first class, subpoenaed as aforesaid, shall not be required to respond to the nesses. same, until they have been furnished with mileage to and from said city, at the rate of ten cents per mile, and a per diem allowance of two dollars for the time their presence is desired in said city.(cc) Ibid. § 2. 13. If any person or persons shall wilfully neglect or refuse to appear, or, having appeared, shall refuse to testify, or to produce any books or paper writings, in his, Proceedings on reher or their possession, or before either branch of the councils of cities of the first fusal to appear class, or any committee of either branch of the same, or before any joint committee and testify. thereof, after he, she or they shall have been duly served with a subpoena requiring him, her or them so to do, it shall be lawful for such councils, or any committee thereof, through its chairman or presiding officer, to present a petition to the court of common pleas of the county wherein such person or persons reside, setting forth the fact of the service of such subpoena and of the refusal to testify in obedience thereto, and the questions it is proposed to propound, and thereupon the court shall grant a rule upon the person or persons referred to, to show cause why an attachment should not issue against him, her or them for contempt; and upon the Attachment for return of the rule, if no sufficient cause be shown to the contrary, an attachment contempt. shall issue as prayed for in the petition, according to the practice of such court in like cases of contempt for disobedience of its process: Provided, That in rendering judgment, the court shall have regard as well [as] to the pertinency and propriety of such questions, as to the regulating of the subpoena and the service thereof. Ibid. § 3. 14. No witness shall be excused from testifying in any investigation or inquiry before either branch of the councils, or any committee thereof, touching his knowlNo person to be edge of any offence under investigation by said branch of the councils, or committee excused from testithereof, but such testimony shall not be used against him in any criminal prosecu- fying. tion whatever. Ibid. § 4. 15. Any person or persons who are or shall be in contempt by reason of failure or refusal to so appear to testify, shall be held and deemed to be guilty of a misdemeanor, and on conviction thereof, shall be punished by imprisonment not Contempt to be a exceeding six months, and by fine not exceeding one thousand dollars, or either, Punishment. at the discretion of the courts trying the same. II. Witnesses in criminal cases. misdemeanor. P. L. 439. 16. No person shall be deemed and adjudged an incompetent witness on the trial 31 March 1860 § 52. of any indictment, for or by reason of such person being entitled, in the event of the conviction of the defendant, to a restitution of his property feloniously taken, Witnesses entitled or the value thereof; or, if fraudulently obtained, to a pecuniary remuneration or to restitution, to compensation therefor; or for or by reason of such witness being liable and subject to the payment of the costs of prosecution.(d) be competent. P. L. 439. Witnesses in for 17. Upon the trial of any indictment for making or passing, and uttering any 31 March 1860 § 55. false, forged or counterfeited coin, or bank-note, the court may receive in evidence, to establish either the genuineness or falsity of such coin or note, the oaths or affirmations of witnesses who may, by experience and habit, have become expert geries. in judging of the genuineness or otherwise, of such coin or paper, and such testimony may be submitted to the jury, without first requiring proof of the handwriting or the other tests of genuineness, as the case may be, which have been heretofore required by law; and in prosecutions for either of the offences mentioned or described in the 164th, 165th, 166th and 167th sections of the "Act to consolidate, revise and amend the penal laws of this commonwealth,"(e) the courts The common pleas has no jurisdiction to issue an (d) This section is taken from the act of 29 March 1809, 5 Sm. 48; and the 31st section of the act of 31 May 1718, 1 Sm. 123. Report on the Penal Code 51. (e) See tit. " Crimes.” P. L. 439. 31 March 1860 § 55. shall not require the commonwealth to produce the charter of either of said banks, but the jury may find that fact upon other evidence, under the discretion of the court.(g) 13 April 1867 § 3. P. L. 1232. Defendants in 18. In all cases of arrest, upon warrant, of any person charged with any crime of a grade of which the court of quarter sessions has jurisdiction, the defendant, upon criminal cases may the preliminary hearing before the magistrate, may subpoena and produce and examine witnesses. examine witnesses in his or her behalf.(h) 23 May 1857 § 1. P. L. 158. All persons competent except as within provided. Ibid. § 2. Conviction of a witness. Exceptions. per of 19. Except upon a preliminary hearing before a magistrate for the purpose of determining whether a person charged with a criminal offence triable in the court oyer and terminer(i) ought to be committed for trial, and except also upon a hearing under habeas corpus for the purpose of determining whether bail ought to be taken upon a commitment for murder in the first degree, or for the purpose of determining in any case how much bail ought to be required, or for the purpose of determining in any case whether a person committed for trial ought to be further held, and except also upon hearings before a grand jury; in none of which cases shall evidence for the defendant be heard; and except also as provided in section two of this act, all persons shall be fully competent witnesses in any criminal proceeding before any tribunal.(k) 20. In such criminal proceeding, (a.) A person who has been convicted in a court of this commonwealth of perjury to disqualify jury, which term is hereby declared to include subornation of perjury, shall not be a competent witness for any purpose, although his sentence may have been fully complied with, unless the judgment of conviction be judicially set aside or reserved, or, unless the proceedings be one to punish or prevent injury or violence attempted, done or threatened to his person or property, in which cases he shall be competent to testify. Ibid. Husband and wife against each other. not to testify Exceptions. Ibid. 21. (b.) Nor shall husband and wife be competent or permitted to testify against each other, or in support of a criminal charge of adultery alleged to have been committed by or with the other, except that, in proceedings for desertion and maintenance and in any criminal proceeding against either for bodily injury or violence attempted, done or threatened upon the other, each shall be a competent witness against the other, and except also that each shall be competent merely to prove the fact of marriage in support of a criminal charge of adultery alleged to have been committed by or with the other.(1) 22. (c.) Nor shall either husband or wife be competent or permitted to testify to confidential communication made by one to the other, unless this privilege be tween husband and waived upon the trial. Confidential communications be wife. Ibid. Between counsel and client. Ibid. § 3. When notes of examination at a former trial competent. For contradiction, testimony may be proved orally. 31 March 1860 § 56. P. L. 443. 23. (d.) Nor shall counsel be competent or permitted to testify to confidential communications made to him by his client, or the client be compelled to disclose the same, unless in either case this privilege be waived upon the trial by the client. 24. Whenever any person has been examined as a witness, either for the commonwealth or for the defence, in any criminal proceeding conducted in or before a court of record, and the defendant has been present and has had an opportunity to examine or cross-examine, if such witness afterwards die, or be out of the jurisdiction so that he cannot be effectively served with a subpoena, or if he cannot be found, or if he become incompetent to testify for any legally sufficient reason properly proven, notes of his examination shall be competent evidence upon a subsequent trial of the same criminal issue; but, for the purpose of contradicting a witness, the testimony given by him in another or in a former proceeding may be orally proved.(m) 25. No witness in any case who enters his or her recognizance, in such sum as the magistrate may demand, to appear and testify in such prosecutions as require his testimony, shall be committed to prison by the judge, alderman or magistrate be imprisoned, ex- before whom any criminal charge may be preferred: Provided, however, That in all cases triable in the oyer and terminer, where a positive oath is made, reduced to writing and signed by the deponent, setting forth sufficient reasons or facts to induce the firm belief on the part of the judge, magistrate or alderman, that any Witnesses not to cept in certain cases. (g) This section is framed from the 3d section of the act of 4 May 1852, P. L. 574; and the 13th section of the act of 25 March 1824, 8 Sm. 238. Report on the Penal Code 52. (h) This section is not, in terms, restricted to Erie county, quere?, whether it is a general law? (i) Where in a case not liable at oyer and terminer, a defendant has been deprived of the privilege of being heard by himself and witnesses, at the preliminary hearing, the indictment will be quashed; the power of the district attorney to prefer an indictment without a previous commitment can only be justified by some pressing and adequate necessity. Commonwealth v. Hughes, 11 C. C. 470. (k) A defendant is entitled to testify, though he does not believe in future punishment. Commonwealth v. Kauffman, 1 C. C. 410. A defendant claim ing his privilege to testify, may have his character attacked for truth and veracity. Commonwealth v. Duckworth, 2 C. C. 443. His words, manner, &c., are subject to comment. Onofri v. Commonwealth, 20 W. N. C. 264. (1) In a proceeding against the husband, the wife is a competent witness for him. Commonwealth v. Brink, 4 ̊C. C. 160. Commonwealth v. Koch, 5 Ibid. 537. (m) This act is not unconstitutional. Commonwealth v. Cleary, 148 P. S. 26. In a murder trial, evidence is admissible of the testimony of a deceased witness which was taken before the committing magistrate in the presence of the accused, the witness having been cross-examined; and this, although the defendant had waived a hearing. Commonwealth v. Keck, 148 P. S. 639. |