Incompetency of accused, and

accused's consort.

Fellow

prisoner can

1. Incompetency of accused, and the wife or husband.

One case referred to is

It is a general principle of English law that no one is bound to criminate himself (nemo tenetur prodere seipsum). In other words, the accused cannot be examined as a witness either for the prosecution or the defence. It is obvious that if he were examined as a witness in his own defence, being subjected also to cross-examination by the counsel for the prosecution, he might be compelled to answer questions which would criminate himself (b). There are one or two exceptions to this principle. under the Merchant Shipping Act, 1875 (c), where it is provided that one accused of sending an unseaworthy ship to sea may give evidence in the same manner as any other witness, for the purpose of shewing that he used all reasonable means to make and keep the ship seaworthy, &c. (d). So also a person charged with buying or receiving arms, equipments, &c., from a soldier, or the husband or wife of such person, may be a witness (e).

In some cases a wrongdoer is not excused from answering questions on the ground that his answer may tend to criminate himself; but on his making full disclosure he is shielded from all ill consequences; for example, 17 & 18 Vict. c. 38, s. 5.

Defendants jointly indicted and given in charge to not be called the jury, and being tried together, cannot be called as witnesses for or against each other. But, as we have

as witness.

(b) The interrogation of prisoners, subject to certain provisions, is recommended by Sir James Stephen. See Gen. View Crim. Law, 189, where the whole subject is entered into, and where the system of noninterrogation is shewn to be of modern date. The reader will remember that the interrogation of prisoners is one great feature of French criminal procedure.

(c) 38 & 39 Vict. c. 88, s. 4; v. p. 147.

(d) The first instance in modern times of a prisoner being examined occurred at the Liverpool Spring Assizes, 1876, when the innovation gave rise to some very severe condemnatory remarks by Mr. Justice Brett. (e) 42 & 43 Vict. c. 33, s. 149; v. p. 63.

seen (f), the course is sometimes adopted of applying for an acquittal of one of the co-defendants, in order to make him a witness for the prosecution, and the other defendants cannot object to this (g). If a second person is indicted with the design of closing his mouth and preventing him from giving evidence, the court may direct his acquittal, if there is no evidence to affect him, or may order him to be tried separately, so that his testimony may be admitted. A defendant who has. pleaded guilty may be examined as a witness for or against his co-defendants, even before he has received sentence.

of accused's

Husband and wife. In treating of the evidence of a Incompetency wife, it may be understood that the same rules, mutatis consort. mutandis, apply to the evidence of a husband.

As a rule the wife cannot be a witness for or against her husband. Not only this, but she cannot be a witness for any other person indicted jointly with her husband, where her testimony would tend to her husband's acquittal, though only remotely, as, for instance, merely by shaking the evidence of a witness (h). And if several prisoners, jointly indicted, are being tried together, the wife of one of them cannot be called as a witness for or against any of the prisoners (i). But to bring the case under this incompetency or exception, the parties must have been actually married; mere cohabitation will not suffice.

There are a few exceptions to this principle, one of Exceptions. which is doubtful.

(a.) In high treason it is said that husband and

(f) v. p. 374.

(g) R. v. Rowland, Ry. & M. 401.

(h) R. v. Smith, 1 Mood. C. C. 289.

(i) R. v. Thompson, L. R. 1 C. C. R. 377; 41 L. J. (M.C.) 112.

Incompetency of idiots.

wife may be witnesses against each other, but no instance can be given (j).

(b.) In cases of personal injury (e.g., assault) by husband to wife, and vice versa.

(c.) In indictments or proceedings for the purpose of trying or enforcing a civil right only (k).

(d.) On proceedings before a court of summary jurisdiction under the Army Discipline Act, 1879, for the offences of buying from soldiers, or being unlawfully in possession of regimental arms, equipments, &c. (1)

(e.) And now under the Married Women's Property Act, in criminal proceedings under that Act taken by a husband or wife against the other, he or she is competent to give evidence against the other (m).

In bigamy, of course the so-called second wife is a competent witness; also in forcible abduction and marriage, the marriage here being invalid, the parties may give evidence against each other.

No other relationship entitles to exemption. Parents and children, brothers and sisters, masters and servants may be, and constantly are, called to give evidence for or against each other.

2. Incompetency from want of understanding.

Generally the same rules which serve to render a person incapable of committing a crime, apply to exclude a person from being a witness. Thus an idiot or a lunatic, unless in an interval of sanity, is incom

(j) v. Rosc. 127. R. v. Griggs T. Raym. 1 (an obiter dictum). (k) 40 Vict. c. 14, s. I; v. p. 440, n.

(2) 42 & 43 Vict. c. 33, s. 149; v. pp. 63, 391.

(m) 45 & 46 Vict. c. 75, s. 12.

petent, it being the province of the court to ascertain whether a person is able to understand the nature of an oath and to give evidence. Persons deaf and dumb,

or dumb only, may give evidence through an inter

preter.

As to children, the rule is somewhat different from Children. that which prevails when the question is whether the child is responsible for its acts. An infant under the age of seven is incapable of committing a crime, but it is competent to give evidence at any age, if it satisfies the test, namely, if it has sufficient intelligence to understand the nature and obligation of an oath (n). The judge frequently, before allowing a child to be sworn, questions it as to its belief in God, knowledge of the consequences of telling a lie, &c.

3. Incompetency on account of the relationship of legal adviser.

Counsel, solicitors, and their agents are not obliged, Incompetency of legal nor are they allowed without the consent of their adviser. clients, to give evidence of communications, written or parol, made to them by their clients in their professional capacity. And it is not material whether the communications were made in the case under trial, or not, nor whether the client be a party to the cause. But of course they may be witnesses on points which do not come within the sphere of professional confidential communications; for example, to prove their client's handwriting or his identity. This privilege does not apply to a medical attendant, a conveyancer, a priest, nor indeed to any others than those mentioned above.

In some cases the court will not compel or allow the Certain facts

(n) v. Fitz. St. 287, as to the evidence of children, though frequently based on imagination, having too much weight, on account of the sympathies of the jury.

not disclosed.

Religious

competency.

disclosure of a particular fact, if such disclosure may be of detriment to the public service, and does not bear directly upon the matter in question, for example, evidence disclosing the channels through which information reaches the government (o).

Incompetency from want of religious belief (p).

But now this

Formerly a person who had no religious belief which belief and in he deemed binding upon his conscience to speak the truth upon oath could not be a witness. incompetency appears to have been done away with by a recent statute (q), which provides that those who object to taking an oath, or are objected to as incompetent to take an oath, the court being satisfied that the taking of an oath would have no binding effect on their conscience, shall make a promise and declaration in the prescribed form:-" I solemnly promise and declare that the evidence given by me to the court shall be the truth, the whole truth, and nothing but the truth." Any person who, having made this declaration, wilfully and corruptly gives false evidence, is liable to be indicted, tried, and convicted as if he had taken an oath. For some time those who had some religious belief, but who conscientiously objected to oaths, such as Quakers, Moravians, and Separatists, had been admitted as witnesses on their making the statutory form of solemn affirmation or declaration (r).

Forms of oath according to creed.

The form of oath varies according to the creed of the witness. In the case of an ordinary Christian, the witness, holding the New Testament in his bare right hand, is thus addressed by an officer of the court:"The evidence you shall give to the court and jury, sworn

(o) v. Hardy's Case, 24 How. St. Tr. 753.

(p) For a full discussion of the question, v. Omichund v. Barker, Willes, 538; 1 Smith's Leading Cases.

(q) 32 & 33 Vict. c. 68, s. 4.

() v. 3 & 4 Wm. 4. c. 49; 3 & 4 Wm. 4, c. 82; 1 & 2 Vict. c. 77; 24 & 25 Vict. c. 66.