dence was admitted.1 And where the charge was of conspiracy to carry off and marry an heiress, Hullock, B., was of opinion that, even assuming the lady was now the lawful wife of one of the defendants, her evidence was admissible.2 On the ground that the charge was not one involving personal wrong, a wife's evidence was rejected where the husband was charged with the statutory offence (in England) of leaving her chargeable to the parish.3 And so was that of the husband on an indictment against the wife, a prostitute, for conspiring with others in procuring the marriage with him.* Bigamy. It might well have seemed that bigamy was of the nature of a personal wrong to the innocent spouse of the lawful marriage. And, accordingly, Alison 5 thinks the evidence of such a person ought to be received. But the law is settled the other way. And this was held in a case where the Crown had no chance of a conviction without the wife's testimony, and gave up the prosecution on its being ruled inadmissible." The rule as to penuria testium, explained by Lord President Inglis in Surtees v. Wotherspoon, does not mean that the evidence in question should be received, because it would be highly valuable for the case of the party seeking to adduce it. In an earlier case Lord J.C. Hope had indicated an opinion in favour of admitting the wife, but the witness was withdrawn and the point not decided. And even where the spouse of the panel was adduced to prove a point merely incidental—viz., that a person was dead, whose statement was to be proved by hearsay, this was rejected. And the law of England is the same. 10 On the first marriage being proved, the innocent party to the alleged bigamous marriage is a competent witness.11 But if the proof of the first marriage were doubtful, and the fact disputed, it would seem that this evidence should be rejected.12 Spouse as Production. In cases of bigamy, it is essential that the witnesses should have known the panel in the character of spouse both of the legal and the bigamous marriage. Accordingly, the spouse of the first marriage, although inadmissible as a witness, may be brought as a production to be identified by the witnesses. And this was even done in a case noted by Hume, where it was alleged that the prisoner's wife had disposed of a bank-note taken by him from a house which had been broken into. The wife though inadmissible was brought and identified as the person who disposed of the note. Alison doubts this case, but Taylor cites it without disapproval, and the law appears settled by a more recent decision.3 Where the Marriage of the Witness is Disputed.—It may happen that the prisoner avers that a witness is his wife without there being any means of instant verification of his statement. The question is still open whether an averment that he was irregularly married to the witness would make it necessary for the Court to consider incidentally the status of the parties.* Lord J.C. Moncreiff indicated an opinion that a witness could not be held disqualified unless there were means at hand of regularly and conclusively establishing the question of status. In this case the prisoner had himself previously denied the marriage, and the woman's evidence not amounting to a distinct statement that she was his wife, she was admitted as a witness, and the point left open.5 In Proceedings under the Public-Houses Acts. It does not appear that in complaints under these Acts the evidence of the wife of the accused has ever been received. In rejecting it in a recent case, the Court declined to lay down as an absolute rule that such evidence was inadmissible. In very special circumstances, where a wife might be the only person who could possibly have the required information, her evidence might be received on the ground of penuria testium. 1 Alison, ii. 463. 2 Taylor, ii. 1161. 3 Bryce, 1844, 2 Broun, 119. 5 Reid, 1873, 2 Coup. 415. 6 Morrison v. M., 1887, 14 R., J.C. 28. 4 Dickson, ii., § 1570. CRIMINATING EVIDENCE. 281 Evidence Tending to Criminate other Spouse. It may . happen that a witness is asked a question pointing at criminal conduct on the part of her husband, although no prosecution has been directed against him. Ill. The settlement of A., a female pauper, turned on the validity of her marriage with C. If she was his wife, she would derive her settlement from him. The evidence of a woman B. was tendered to prove that she was C.'s lawful wife, and that A.'s marriage with him was bigamous. This was admitted, though tending to render C. liable to a charge of bigamy.1 But the wife's evidence and the decision of the Court would not have been evidence against him, if tried for that crime, being altogether res inter alios acta. The law was thus stated by Ellenborough, C.J. :—" If we were to determine without regard to the form of proceeding, whether the husband was implicated in it or not, that the wife is an incompetent witness as to every fact which may possibly have a tendency to criminate her husband, or which, connected with other facts, may perhaps go to form a link in a complicated chain of evidence against him, such a decision, as I think, would go beyond all bounds; and there is not any authority to sustain it, unless indeed what has been laid down, as it seems to me, somewhat too largely in Rex v. Cliviger,2 may be supposed to do so.' But it was thought by Bayley, J., that the witness, although competent, might decline to answer a question tending to criminate her husband, and throw herself on the protection of the Court. Where the husband (or wife) of the witness has already been tried for the crime, and acquitted or condemned,, the ground of privilege no longer exists. Ill.—A. tried for sheep stealing. Proposed to call the wife of B. to prove that A. and B. had stolen the sheep jointly. B. had previously been convicted. Held his wife was a competent witness. 4 The Act of 1853 abolished the general incompetency of husbands and wives to give evidence for or against each other 1 R. v. All Saints, Worcester, 1817, 6 Maule and S. 194. 2 2 T.R. 263. 3 R. v. All Saints, Worcester, supra, at p. 199. Followed in R. v. Bathwick, 1831, 2 Barn. and Ad. 639. 4 Reg. v. Williams, 1838, 8 C. and P. 284. in civil causes, but preserved the common law as to their incompetence in criminal proceedings, and provided that nothing herein contained "shall in any proceeding render any husband competent or compellable to give against his wife evidence of any matter communicated by her to him during the marriage,' and vice versa.1 Evidence of Spouses admissible by certain Statutes.— Various statutory exceptions to the common law rule have been made in recent Acts. The following list may not be exhaustive. The husband or wife of the person accused of the statutory offence, is a competent and compellable witness under these Acts : The Conspiracy and Protection of Property Act, 1875 (38 & 39 Vict. c. 86, § 11), where the charge is of maliciously breaking a contract of service, whereby the inhabitants of a place are deprived of gas or water; or whereby injury is caused to persons or property, §§ 4 and 5; or where a master, legally bound to provide a servant or apprentice with necessary food, clothing, &c., has neglected to do so, to the danger of the servant's health, § 6. 40 Vict. c. 14, where the charge is for non-repair of a public highway or bridge, or nuisance to a public highway, river, or bridge; or where any quasi-criminal proceeding is instituted for trying or enforcing a civil right only. The Army Act, 1881 (44 & 45 Vict. c. 58, § 156, subsection 3). The husband or wife of the accused is a competent witness, but not compellable, under The Criminal Law Amendment Act, 1885 (48 and 49 Vict. c. 69, § 20), offences against young girls. The Corrupt Practices Prevention Act, 1883 (46 & 47 Vict. c. 51, § 53, sub-section 2). The Prevention of Cruelty to Children Act, 1889 (52 & 53 Vict. c. 44, § 7). The husband or wife of the accused may be tendered as a witness for the defence under : The Sale of Food and Drugs Act, 1875 (38 & 39 Vict. c. 63, § 21). 1 16 Vict. c. 20, § 3. OFFENCES BY ONE SPOUSE ON ANOTHER. 283 The Explosive Substances Act, 1883 (46 Vict. c. 3, § 4, sub-section 2), making or possessing explosives under suspicious circumstances. The Merchandise Marks Act, 1887 (50 & 51 Vict. c. 28, § 10). Bankruptcy. Under the Bankruptcy Act, the wife of a bankrupt may be compelled to answer all lawful questions relating to the affairs of the bankrupt. And this rule would no doubt be extended to the husband of a female bankrupt. Can a Wife steal from her Husband or vice versa ?—It would appear that she can. A difficulty was formerly felt owing to the theory of communio bonorum. But it was held in one case that a husband was relevantly charged with theft where he had surreptitiously appropriated a sum of money forming part of the wife's tocher, he having renounced his jus mariti and right of administration. In England, by the common law, a husband and wife cannot steal from one another.3 But an exception has been introduced by the Married Women's Property Act, 1882.4 Rape. Can a Husband commit Rape upon his Wife? -Hume and Alison say that he cannot be guilty of this crime except as aiding another person to commit it. The same doctrine is laid down in England by Hale. The ground assigned by him is that the wife's consent at marriage is irrevocable. But Sir James Stephen says, "It may be doubted, however, whether the consent is not confined to the decent and proper use of marital rights. If a man used violence to his wife under circumstances in which decency or her own health or safety required or justified her in refusing her consent, I think he might be convicted at least of an indecent assault."8 But that learned judge has withdrawn this opinion in a recent case in which a husband was charged with a statutory assault, on the ground that he had infected his wife 1 19 & 20 Vict. c. 79, §§ 90, 91. 3 Hale, P.C., i. 514. 5 i. 306. 6 i. 214. 7 P.C. 629. 8 Digest of Crim. Law, 4th Ed., p. 194. |