The personal transactions and communications which, under this section, may not be testified to by the wife, are those had between her and the deceased, personally. She is not incompetent to testify thereto, if had between the deceased and her husband: therefore, held, that she might testify in regard to conversations between her husband and deceased, as to which she was a mere listener: Johnson v. Johnson, 52-586. The wife of plaintiff was not allowed to testify, in a particular case, as to labor performed by her for deceased, where such labor was claimed to be the consideration for a note of deceased, sued on by plaintiff: Ashworth v. Grubbs, 47-353. tified only as to their relations with The payment of a note to the de- Where an administrator, though a party, was not a necessary party, and the suit was dismissed as to him, held, that the testimony of plaintiff as to a personal transaction between himself and decedent was competent: Campbell v. Mayes, 38-9. Under Rev. §5982, in many respects differing from this section, held, that A party is not allowed to give evi- where an action was pending against dence of work, etc., done with the a defendant who subsequently died, knowledge or assent of deceased, in and whose administrator was then such way as to raise an implied prom- substituted, a deposition of the plainise: Peck v. McKean, 45-18; Smith | tiff, taken before defendant's death, r. Johnson, 45-308. But where the was not admissible in evidence: plaintiff, as executor, testified as to facts from which an implied promise of defendant to pay rent of premises occupied during decedent's lifetime could be inferred; held, that defendant might testify to an arrangement with de eased, by which he was to occupy rent free: Bailey v. Keyes, 52-90. Quick v. Brooks, 29-484; also, held, The contestants of a will in an action to probate the same, having tes- | Otis, 33–402. of tionally. SEC. 3640. Any person may have his own deposition, or that Depositions any other person, read and used as evidence in all cases where taken condihis evidence would be incompetent by the provisions of the preceding section, by causing such deposition to be taken, either before or after suit brought, during the lifetime or sanity of the person against whom, his executor, heir, or other representative, the same is to be used; provided, such deposition shall have been taken and filed ten days prior to the death or insanity of such person. If after suit Lrought, such deposition may be taken in the usual manner; if before, then the same may be taken de bene esse, as provided by law. R. 23983. SEC. 3641. Neither the husband nor wife shall in any case Husband and be a witness against the other, except in a criminal prosecution wife, for a crime committed one against the other, or in a civil action C. 51, 2391. or proceeding one against the other; but they may in all civil and criminal cases be witnesses for each other. [A substitute for the original section; 15th G. A., ch. 33. The original section was as follows: "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 and criminal cases, be witnesses for each other."] The wife being a competent witness for the husband in a criminal prose cution, it is error to charge the jury that her testimony is to be received Same. R. 23984. Professional confidence. R. 3985-6. bility is to be tested by the same rules Where husband and wife are joint Where husband and wife are indicted together, the husband is entitled to the wife's evidence, in the same manner as any other defendant may have the evidence of a codefendant, under the decision in The State v. Gigher, 23-318: The State v. | Donovan, 41–587. Adultery is a "crime committed by the one against the other," within the meaning of this section, and in a prosecution for such crime, the husband or wife, as the case may be, is a competent witness against the other: The State v. Bennett, 31-24; The State v. Hazen, 39–648 Under Rev., § 3983, which prohibited the husband or wife being witnesses for or against each other, except in criminal cases, held, that this was a privilege which rested with the other party to the marriage relation, and might be waived by such party under Rev., § 3986 (present Code, § 3643, last clause), and was not intended for the benefit of the opposite party in the suit: Russ v. Steamboat War Eagle, 14-363; Blake v. Graves, 18313 (explaining Karney v. Paisley, 13-89.) SEC. 3642. Neither husband nor wife can be examined in any case as to any communication made by the one to the other while married, nor shall they, after the marriage relation ceases, be permitted to reveal in testimony any such communcation made while the marriage subsisted. SEC. 3643. No practicing attorney, counselor, physician, surgeon, minister of the gospel, or priest of any denomination, shall be allowed in giving testimony to disclose any confidential communication C. 51, 2393-4. properly entrusted to him in his professional capacity, and necessary and proper to enable him to discharge the functions of his office according to the usual course of practice or discipline. Such prohibition shall not apply to cases where the party in whose favor the same are made waives the rights conferred. A party to a suit, who is also a witness, cannot be called on to state a confidential communication made to his attorney: Barker v. Kuhn, 33392. A communication to one supposed to be an attorney, but who was not such at the time, but was studying and was soon after admitted, held, not privileged: Sample v. Frost, 10266. Previous threats against the life of a party, for whose murder defendant was on trial, made to an attorney whom defendant was consulting in regard to a civil suit against such party, held, not to be a privileged communication: The State v. Mewherter, 46-88. That a person to whom communications were made was an acting magistrate and usually did the business of defendant, and frequently gave him advice and counsel, held, not sufficient to make a communication to such person privileged: Pierson v. Steortz, Mor. 136. SEC. 3644. A public officer cannot be examined as to commuPublic officers. nications made to him in official confidence, when the public interest would suffer by the disclosure. R. 3987. SEC. 3645. The judge of the court is a competent witness for Judge compe- either party, and may be sworn upon the trial. But in such case it is in his discretion to order the trial to be postponed or suspended and to take place before another judge. tent. R. 4005. R. 23988. SEC. 3646. No witness is excused from answering a question Civil liability. upon the mere ground that he would be thereby subjected to a C. 51, 2396. civil liability. R. 2 3989. SEC. 3647. But when the matter sought to be elicited would Criminal. tend to render him criminally liable, or to expose him to public c. 51, 2597. ignominy, he is not compelled to answer except as provided in the next section. conviction. SEC. 3648. A witness may be interrogated as to his previous Previous conviction for a felony. But no other proof of such conviction is R. 28990. competent except the record thereof. C. '51, 2398. ter. SEC. 3649. The general moral character of a witness may be Moral characproved for the purpose of testing his credibility. Proof of a specific vice, as want of impeached by showing an abnormal chastity, is not competent for the pur-condition of the mind, caused by dispose of discrediting the competency ease or habits which impair the memof a witness: Kilburn v. Mullen, ory: Alleman v. Stepp, 52-626. 22-498. The doubt thrown upon the credibility of a witness by proof of bad moral character, may be removed by corrob rating evidence: Snediker v. Poorbangh, 29-488. The credibility of a witness may be Under $ 4556, this section is applicable equally in criminal cases, and where one of two co-defendants is called to testify for the other, he may be impeached as any other witness: The State v. Hardin, 46–623. R. 23991. versation. C '51, 2 2399. SEC. 3650. When part of an act, declaration, conversation, or Whole of a writing, is given in evidence by one party, the whole on the same writing or consubject may be inquired into by the other; thus when a letter is R. 3992. read, all other letters on the same subject between the same parties may be given. And when a detached act, declaration, conversation, or writing, is given in evidence, any other act, declaration, or writing which is necessary to make it fully understood or to explain the same, may also be given in evidence. The other act or declaration contemplated by this section must be something which is necessary to make the previous or subsequent act or declaration fully under tɔɔd, or to explain it. It is not all th t a party may have said at other times in regard to the matter in controversy which may be thus introduced: Dougherty v. Posegate, 3-88. When part of a conversation is given in evidence by one party, the whole on the same subject may be inquired into by the other: Gaddis v. Lord, 10-141. Where a subject is introduced in the examination of a witness, and a Parol evidence of the contents of If part of an account, in an account book, is relied on, the whole must be received: Veiths v. Hagge, 8-163, 189. A witness may be allowed to testify as to a part of a conversation which Writing and C. '51, 2 2400. he heard, although there was a part aldson, 8–108. Where, on the trial of a criminal action, one declaration of defendant was admitted, but subsequent decla rations were offered, but refuse, such action will not be held errone ous, unless it affirmatively appear that such subsequent declarations were necessary to exp ain the first, or make it tully understood: The State v. Vance, 17-138. SEC. 3651. When an instrument consists partly of written and partly of printed form, the former controls the latter when the two are inconsistent. SEC. 3652. When the terms of an agreement have been Understanding intended in a different sense by the parties to it, that sense is to prevail against either party in which he had reason to suppose the other understood it. of parties. R. 3994. C. '51, & 2401. Scientific This section only applies to instruments which arise out of and are the expression of the agreement of two minds: Pierson v. Armstrong, 1-282, 287. Section applied: Snow v. Flannery, 10-318; Stout v. Fire Ins. Co., 12371, 350; Wilkinson v. Conn., etc., Ins. Co., 30-119, 127. SEC. 3653. Historical works, books of science or art, and pub Historical and lished maps or charts, when made by persons indifferent between the parties, are presumptive evidence of facts of general notoriety or interest. works. R. 3995. C. '51, 2402. Subscribing C. '51, 2403 R. 3997. C. '51, 2 2404. SEC. 3654. When a subscribing witness denies or does not recollect the execution of the instrument to which his name is subscribed as such witness, its execution may be proved by other evidence. SEC. 3655. Evidence respecting handwriting may be given by Handwriting. comparison made by experts, or by the jury, with writings of the same person which are proved to be genuine. The writing with which comparison | comparison; but to be an expert in is made, must be proved to be genu- regard to hand-writing the witness ine by testimony of witnesses who need not be a man of any particular saw the party write it, or by the calling. The competency of two party's admission, when not offered witnesses in a particular case, held, by him, or in some such a positive to be sufficiently shown: Ibid. manner. The genuineness of the standard cannot be proved by a witness who has seen the party write generally. The standard, however, need not be a writing connected with On appeal in an equitable action, the case: Hyde v Woolfolk, 1-159. triable de novo, the supreme count The opinion of an ordinary witness, will make a comparison of the writformed upon comparison of the writings: Moris v. Sargent, 18-90; and ings alone, is not admissible. No see Baker v. Mygatt, 14-131; but in one but an expert can be allowed to an action by ordinary proceeding give an opinion formed upon such the determination of the court upon Evidence of experts is of the most unsatisfactory character. and the court may so instruct the jury: Whitaker v. Parker, 42-585. the genuineness of a signature is, up-sideration as the verdict of a jury: on appeal, entitled to the same con- Lay v. Wissman, 36–305. ing. SEC. 3656. Every private writing, except a last will and testa- Private writ ment, after being acknowledged or proved and certified in the R. 4000. manner prescribed for the proof or acknowledgment of convey- C. 51, 2407. ances of real property, may be read in evidence without farther proof. SEC. 3657. The entries and other writings of a person deceased, Entries by deceased person. made at or near the time of the transaction and in a position to R. 3998. know the facts therein stated, are presumptive evidence of such C. 51, ¿ 2405. facts when the entry was made against the interest of the person so making it, or when made in a professional capacity or in the ordinary course of professional conduct, or when made in the performance of a duty specially enjoined by law. Where entries are offered as being against the interest of the party making them, such interest should be made clearly to appear: The State v. Wooderd, 20-541. The jury may be told that testimony of this kind, though competent, yet as the right of cross-examination does not exist, is not highly favored by the law: Ibid. BOOKS OF ACCOUNT. evidence. SEC. 3658. Books of account containing charges by one party when and how against the other, made in the ordinary course of business, are admitted in receivable in evidence only under the following circumstances, R. 5999. subject to all just exceptions as to their credibility: 1. The books must show a continuous dealing with persons generally, or several items of charge at different times against the other party in the same book or set of books; 2. It must be shown by the party's oath or otherwise that they are his books of original entries; 3. It must be shown in like manner that the charges were made at or near the time of the transactions therein entered, unless satisfactory reasons appear for not making such proof; 4. The charges must also be verified by the party or clerk who made the entries, to the effect that they believe them just and true, or a sufficient reason must be given why such verification is not made. The preliminary proof being made. I the books of such business to prove the question of the admissibility of charges for money loaned. Proof of books in evidence is for the court: a course of business between the parthe degree of credit given them and ties, of lending and charging in a the question of whether the charges book of account, will not be sufficient are in the ordinary course of business to make such book admissible in eviare to be determined by the jury. In dence: Veiths v. Hagge, 8-163; Young general, a charge for "money paid" v. Jones, 8-219; Sloan v. Ault, 8-229; or "money lent" is not a charge in the Snell v. Eckerson, 8-284; Cummins v. usual course of business, and cannot Hull's Adm'r, 35-253; and in a particbe proved by a party's books of ac-ular case, held, that in the absence of count. But if the payment or loan of money constitutes, in any just sense, the ordinary business of the party, and the charges are made in the ordinary course of business, they may be proved by the books of account. The business of keeping a retail store, however, is not generally such business as to justify the introduction of any explanation as to what the ordi- C. '51, & 2406. |