not be admitted. Now here the wife was called to contradict what her husband had before sworn, and to prove him guilty of perjury as well as bigamy; so that the tendency of her evidence was to charge him with two crimes. However, though what she might then swear could not be given in evidence on a subsequent trial for bigamy, yet her evidence might lead to a charge for that crime and cause the husband to be apprehended." 1846, Tenney, J., in State v. Welch, 26 Me. 30, 32 (excluding the husband of one with whom the defendant was charged to have committed adultery): "If there is soundness in the reason which is given in the books for holding incompetent the husband or wife to give against each other evidence, because it may be the means of implacable discord and dissension between them,' it is certainly difficult to perceive how that discord and dissension will fail to arise when in collateral proceedings testimony should be given by one which charges directly upon the other the same crime for the commission of which the party on trial is indicted." But this application of the privilege was soon disowned in England; and its scope was restricted to such testimony only as disfavors the other spouse's legal interests in the very case in which the testimony is offered. It is not to be regretted that thus the attempt to be logical with an illogical reason came to failure, and that the privilege was wholesomely kept within some sort of bounds: 1817, Ellenborough, L. C. J., in R. v. All Saints, 6 M. & S. 195, 199: "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"; Bayley, J.: "There was no objection arising out of the policy of the law because by possibility her evidence might be the means of furnishing information and might lead to inquiry and perhaps to the obtaining of evidence against her husband. It is no objection to the information that it has been furnished by the wife. . . . I am not sure that the import of the expression 'tendency to criminate' was very accurately defined in that case [of R. v. Cliviger]. It was probably not understood as meaning that the wife's evidence could be used against her husband, for we know that this could not be so. . . . Nothing which the wife proved on this occasion could be the direct means of founding a prosecution against her husband, although it might afford the means of procuring evidence against him; but such a collateral consequence is not a sufficient objection"; Abbott, J.: "It may properly be said of her evidence that it has not any tendency to criminate him, provided that expression be understood with the limitation which I affix to it, that is, to criminate him in the course of some proceeding in which a crime is imputed to him." 1806, Roane, J., in Baring v. Reeder, 1 Hen. & M. 154, 168: "I take the rule on this subject to be that, in civil actions where the husband is no party, the wife may be called as a witness even to facts which if proved in another action to which her husband is a party, and by evidence other than her own, may go to charge him. The unavailing testimony of the wife in such a case, entirely impotent as it relates to the husband, producing him no loss, and consequently exciting in him no displeasure, will not violate the reason of that policy which, in respect to the harmony to be desired in the marriage state, has given rise to the rule in question." 1869, Durfee, J., in State v. Briggs, 9 R. L. 361, 365: "Upon principle, we find no satisfactory ground for the distinction [between direct and indirect crimination]. The supposed disqualification of husband and wife to give, in collateral cases, testimony directly criminative of each other, is said to rest on the policy of avoiding dissensions between husband and wife; and, if so, the disqualification ought to be complete; for such dissen sions, differing only in degrees of virulence, would be likely to result from testimony which tends to criminate as well as from that which is directly criminative. There are logically only two alternatives, either to exclude the testimony entirely, or to admit it to any extent in collateral proceedings provided that no use can afterwards accrue therefrom in any direct proceeding; we think it the better rule subject to such proviso to admit the testimony. . . . Neither can we perceive that any special mischief will be likely to result from it; for the testimony, being given in a collateral proceeding, could have effect only as information against the husband or wife, there being no contradiction between them, and there is but slight reason for supposing that the witness would willingly communicate under oath any information which would otherwise be withheld; generally, indeed, it is pretty well known, either from the witness himself or otherwise, what he can testify before he takes the stand. If we accord to the witness the privilege of objecting to testify on the ground that the testimony if given will criminate or tend to criminate a husband or wife, we think that in a proceeding which can never be used against the husband or wife there is no sound principle of public policy which requires that we should go still further, and put it in the power of a third person, by objecting when the witness does not object, to defeat (it may be) a just claim or escape a merited punishment." 1883, Sharpstein, J., in People v. Langtree, 64 Cal. 256, 258, 30 Pac. 813: "When may she be said to be examined for or against him? . . . No one is said to be examined for or against one not a party to the action or proceeding in which such witness is called to testify. And the testimony of a witness is not evidence for or against any one not a party to the action or proceeding in which such testimony is given." Of these reasons, two may be noted as particularly strong. One of them is that the exclusion of a wife on the ground that her testimony may reveal his misconduct, and thus "tend" to charge him, rests on the assumption, false to fact, that her testimony on the stand would in any sense be a revelation, an unsealing of that which was secret.1 Nothing prevents her from revealing her knowledge out of court; in most instances she has in fact done so. It would be mere hypocrisy to sanction her silence on the stand on the pretext that the husband was thus really safeguarded from her disclosure. The other argument is found in the general principle (ante, § 2196), that a party cannot, as such, take advantage of a witness' privilege; in other words, an opponent cannot claim that the wife of a third person should be excluded. because of the privilege of her husband, so long as neither husband nor wife claims the privilege. In examining, then, the application of the rule in this respect, it is to be understood that by the orthodox view the privilege applies only in favor of a person against whom as a party to the cause the testimony of a wife or husband is offered. § 2235. Same: Sundry Applications of the Rule (Bankruptcy, Adultery, etc.). In the application of the rule to the great variety of facts that naturally present themselves, not much is 1 It is to be noted that the phrase "tend to criminate," as here used, is to be distinguished in meaning from the same phrase as used for the privilege against self-crimination. In that place (post, § 2260), it signifies that facts not being in themselves criminal, yet forming with other facts the elements of a crime, are within the privilege; and so here also, assuming the profitable in the way of generalization. husband to be a party, the privilege concededly covers facts "tending" in that sense to charge him (L. C. J. Tenterden, in R. v. Bathwick, supra). But when he is not a party, and the question is whether the privilege covers facts directly involving a charge, the phrase “tend to criminate" is used, in R. v. Cliviger, supra, as also describing that totally distinct problem. For one thing, in bankruptcy proceedings, the testimony of the wife of the bankrupt, so far as it is called for by the creditors, has always been deemed privileged, whatever the status of the husband as a party may be deemed to be.1 In pauper-settlement cases, the town or other corporation is in strictness the party charged, and the testimony of the wife of the pauper or of any other person could not properly be the subject of a privilege; the authority of the contrary ruling in R. v. Cliviger (above quoted) was practically repudiated by the principle laid down in R. v. All Saints (above quoted).2 In a case involving a charge of adultery, the testimony of the wife or husband of the person, not a party, with whom the adultery is charged, is not the subject of a privilege, on the principle of R. v. All Saints; but here there is a decided opposition in the judicial views. Where the testimony offered does no more than discredit the character or disparage the veracity of the witness' husband or wife not being a party, the case is clearly without the privilege, although a few Courts chivalrously proclaim here also a privilege.5 1 1613, Anon., 1 Brownl. 47 ("By the common law she shall not be examined "); 1719, Ex parte James, 1 P. Wms. 610 (wife excluded; the statute of 21 Jac. I, quoted ante, § 2227, extending only to the concealment of goods and no further); 1899, Re Jefferson, 96 Fed. 826 (wife not compellable); 1899, Re Mayer, 97 id. 328 (wife not compellable to testify against a bankrupt husband, by Wisconsin law); 1903, Re Worrell, 125 id. 159 (U. S. St. 1903, applied; inquiry into the facts allowed to determine whether the business was the wife's separate business or not). Compare the statutes cited ante, § 488, and the cases under the self-crimination privilege, post, § 2282. 2 1788, R. v. Cliviger, 2 T. R. 263 (pauper settlement of M. as J.'s wife; E. was called to prove that she was married to J. prior to his marriage to M.; J. had already testified denying the prior marriage; it was argued that this showed J.'s commission of bigamy and perjury, though J. was not a party; the wife was excluded; quoted supra); 1817, R. v. All Saints, 6 M. & S. 195 (pauper settlement of E., married to W.; to show this marriage void, A. was admitted to prove her prior marriage to W., W. not having testified, and the husband not being a party nor contradicted as a perjurer; quoted supra); 1831, R. v. Bathwick, 2 B. & Ad. 639 (pauper settlement of E.; after C.'s testimony to his marriage with E., the opponent, to prove the marriage invalid, called M. to prove C.'s prior marriage to her; admitted, because "the present case is not a direct charge or proceeding against her husband... [neither] has any interest in the decision of the question"; whether if C. had denied such a marriage, and thus the wife testified to his perjury, the result would be otherwise, left undecided; R. v. Cliviger disapproved); 1814, Canton v. Bentley, 15 Mass. 441 (pauper settlement; husband's testimony to wife's adultery, to prove illegitimacy, doubted). 3 Not privileged: 1902, Roesner v. Darrah, 65 Kan. 599, 70 Pac. 597 (alienation of affections of plaintiff's wife; plaintiff admitted to testify); 1857, State v. Marvin, 35 N. H. 22, 28; 1845, Van Cort v. Van Cort, 4 Edw. Ch. 621, 623 (divorce for adultery with X; X's husband admitted for the complainant, because adultery was not a crime in New York, and he was therefore not criminating his wife); 1902, State v. Wiseman, 130 N. C. 726, 41 S. E. 884 (husband held admissible to prove fornication between a third person and the witness' wife, the defendant, charged as committed before their marriage, the charge against the wife having been withdrawn; Douglas, J., diss); 1876, State v. Bridgman, 49 Vt. 202, 206 (adultery with C.; C.'s husband allowed to testify for the prosecution, his wife not being a party); 1858, State v. Dudley, 7 Wis. 664 (former husband of W., admitted to prove her adultery with defendant, because his testimony "would be inadmissible in support of an indictment against her "); 1903, State v. West, 118 id. 469, 95 N. W. 521 (preceding case approved). Privileged: 1793, State v. Gardner, I Root 485 (adultery with A.; A.'s husband not admitted for the prosecution); 1846, State v. Welch, 26 Me. 30 (adultery with A.; A.'s husband excluded); 1903, Graves v. Harris, 117 Ga. 817, 45 S. E. 239 (alienation of affections, with an allegation of crim. con.; plaintiff husband held disqualified); 1863, Com. v. Sparks, 7 All. 534 (adultery with D.; D.'s husband not admitted for the prosecution; by a majority, following State . Welch, Me., supra); 1895, People . Fowler, 104 Mich. 449, 62 N. W. 572 (husband of A. not admitted, on a charge of defendant's adultery with A.): 1864, State v. Wilson, 31 N. J. L. 77, 81 (husband not admitted to prove adultery of his wife with defendaut, though the wife had been acquitted). Compare the cases involving co-defendan's { post, § 2236) and crimes against the other ( post, § 2239, par. 3), which sometimes involve adultery in other aspects. 4 1871, Ware v. State, 35 N. J. L. 553, 555 (husband allowed to testify against wife's character for veracity as a witness). 5 1858, Keaton v. Greenwood, 24 Ga. 217, 228 (wife's testimony discrediting that of husband Further than this, it seems unsafe to attempt to classify the rulings, since so much depends upon the facts of each case. On which side lies the weight not a party, excluded; following R. v. Cliviger "with extreme reluctance and dissatisfaction"); 1839, Stein v. Bowman, 13 Pet. 209, 221 (wife not admitted to testify that her deceased husband, who had testified, had admitted that he was bribed; placed partly on R. v. Cliviger, partly on the ground of confidential communications); 1855, Smith v. Proctor, 27 Vt. 304, 308 (widow said to be inadmissible to transactions affecting the character of the husband "); 1878, White v. Perry, 14 W. Va. 66, 81 (wife not admissible to prove facts "affecting the character" of her husband, though he is not a party; here, testimony to his admission of a false statement, excluded). husband's); 1877, Higbee v. McMillan, 18 id. 133, 135 (wife of a vendor admitted for the vendee in replevin claiming goods against another vendee; the vendor not being a party nor concluded by the judgment); Ky.: 1831, Hig don's Heirs v. Higdon's Devisees, 1 J. J. Marsh. 48, 54 (husband not admitted where wife was a co-opponent); 1877, Milton v. Hunter, 13 Bush 163, 169 (husband of an heir not a party, not admitted on behalf of the proponent of a will); Mass.: 1814, Fitch v. Hill, 11 Mass. 286 (surety's wife admissible in action against the maker of a note, the liability being contingent only); Mich.: 1898, Michigan B. & P. Co. v. Coll, 116 Mich. 261, 74 N. W. 475 (bill against real estate owned by husband and wife as joint tenants; husband not admitted as against his own interest in the estate, because the estate was inseparable); Minn.: 1897, Lockwood v. Lockwood, 67 Minn. 476, 70 N. W. 784 (wife admissible in her suit against the husband's father and mother for alienation of affections); 1903, Evans v. Staalle, 88 id. 253, 92 N. W. 951 (the wife is compellable, if a party, where the husband is not a party); Miss.: 1901, Virden v. Dwyer, 78 Miss. 763, 30 So. 45 (not admitted upon creditors' bill against husband and wife to set aside conveyance); Nebr.: 1895, Buckingham v. Roar, 45 Nebr. 244, 63 N. W. 398 (admissible, where the other spouse is a nominal party only; here in an action to cancel a deed of dower); N. J. 1840, Doe v. Johnson, 18 N. J. L. 87, 90 (suit for land, between creditor and vendee of debtor; debtor's wife admissible for three lots as to which her husband was no longer interested in the event of the suit, even though her testimony charged him with fraud; but not as to a lot in which he was interested, nor in any case to testify directly to his crime); 1895, Woolverton v. Van Syckel, 57 id. 393, 31 Atl. 603 (the wife defaulted in an action against a firm to which she belonged, and the husband was admitted in the action against the other partner); 1899, Munyon v. State, 62 id. 1, 42 Atl. 577 (attempting to produce a miscarriage; wife's testimony held on the facts not to incriminate the husband assisting the defendant); N. C. 1878, State v. Parrotty, 79 N. C. 615 (on trial of W. for assaulting P., W. may call P.'s wife, P. not being "interested in the result "); Pa.: 1870, Rowley v. McHugh, 66 Pa. 269 (ejectment by husband and wife for land claimed to be the wife's, against one claiming under a judgment sale against the husband; wife admitted for the plaintiff, because the husband did not warrant defendant's title); 1877, Greenawalt v. McEnelley, 85 id. 352 (title depending on a child's legitimacy; widowed mother admitted to testify to the date of her marriage and the child's birth); 1886, Pleasanton v. Nutt, 115 id. 266, 269, 8 Atl. 63 (replevin by a wife against the husband's vendee; the husband being interested as warrantor, the wife was not admitted for herself, nor he against her); 1887, Burrell v. Uncapher, 117 id. 353, 362, 11 Atl· 619 (action in joint names for the wife's per 6 Sundry rulings in the various jurisdictions are as follows; compare the statutes cited post, § 2245: Eng. 1684, Lady Ivy's Trial, 10 How. St. Tr. 555, 621, 628, 644 (Mrs. D. testified that her husband, now deceased, an agent of the defendant, had helped the defendant in forging certain title-deeds offered by the defendant; on objection that she could not swear it upon him here," L. C. J. Jefferys answered: "That is not against him, man; he is out of the case; but against my Lady Ivy"; yet he forbade the husband's oath to be used to discredit the wife as witness); 1717, Williams v. Johnson, 1 Stra. 504, King, C. J. (action against a husband for goods supplied to the wife; to prove for the defendant that the goods were supplied on the credit of the wife's father, the testimony of the wife's mother, who was present at the purchase, was admitted); 1806, Vowles v. Young, 13 Ves. Jr. 140, 144 (issue of legitimacy on a bill of redemption by heirs; a husband's declarations as to the wife's illegitimacy, admitted, there being "no interest in the husband "); 1828, Henman v. Dickinson, 5 Bing. 183 (wife of the drawer, to prove a forged alteration by her husband, in an action by an indorsee against the acceptor of a bill; R. v. Cliviger doubted); 1832, R. v. Gleed, Bell Cr. C. 258, note, Littledale and Taunton, JJ. (larceny; E.'s wife not admitted to prove that E. was present at the stealing; since "her evidence cannot but facilitate an accusation against her husband"); 1843, Langley v. Fisher, 5 Beav. 443 (bill to reach the wife's separate estate; co-defendant's husband excluded); 1860, R. v. Halliday, Bell Cr. C. 257 (Court for Crown Cases Reserved; false pretences made with T.'s wife, with a count for conspiracy by the two, but the latter count was not tried; T. admitted to testify against defendant, though "his evidence tended to show that his wife had acted unlawfully and criminally "); Can.: 1884, Millette v. Litle, 10 Ont. Pr. 265 (husband held not compellable to criminate his wife as co-defendant in libel); Ark.: 1884, Nolen v. Harden, 43 Ark. 307, 315 (the rule "does not extend to collateral suits between third parties"); Ill.: 1882, Lincoln Ave. & N. C. G. R. Co. v. Madaus, 102 Ill. 417, 421, semble (similar); Kan. 1874, Furrow v. Chapin, 13 Kan. 107, 112 (wife admitted in action of replevin against an officer seizing goods as her of authority in general, for the broader or the narrower view of the privilege, it would be difficult to say, since the individual Courts are not always consistent with themselves. But no Court ought to-day to lend its sanction to any expansion of the limits of this undesirable rule of privilege; and there is at least ample authority for the most rigid restriction. § 2236. Same: Co-indictees and Co-defendants. When one spouse is charged by indictment with the same crime as a party against whom the other spouse is offered as a witness, the application of the preceding principle is determined by a special set of rules. The looser view of the privilege, it is true (ante, § 2234), might serve to extend it to any case in which (for example) a wife's testimony involved in the crime a husband not being in any way a party to the formal charge. Nevertheless, in this field, the looser view seems to have been given little sanction, and the result is reached by following the stricter interpretation and applying the general rules which determine whether the person is technically a party to the cause. Thus, the special body of rules which served to determine whether Doe, indicted with Roe, was qualified as a witness on Roe's behalf, are also followed in passing upon the admission of Doe's wife to testify for the prosecution against Roe; just as they were also employed (ante, § 609) to determine whether Doe's wife was admissible on Roe's behalf. Those rules have been already examined in detail (ante, § 580). It is enough here to refer to their connection, and to note their application to the present privilege. Under those rules, then, it is generally held that the privilege covers the case of the wife of a co-defendant now on trial;1 but not the case of the wife sonal injury; the husband not admissible against in possession of the goods and had sold them); 1830, Robin v. King, 2 Leigh 140 (widow not admitted to prove disclaimer of title by her husband, a grantor under whom defendant claimed; but here put on the ground of confidential communications); 1873, Murphy v. Com., 23 Gratt. 960, 966 (assault; the wife of the injured party offered to prove him the aggressor; not decided); Wash.: 1899, Frankenthal v. Solomonson, 20 Wash. 460, 55 Pac. 754 (creditors' proceeding against wife as holding property of insolvent debtor; debtor not privileged to exclude the wife's testimony for creditors). 1 1775, R. v. Rudd, 1 Leach Cr. L., 4th ed., 115, 128, 132 (co-defendant's wife excluded, but not the wife of a principal already convicted, even though she hopes for a pardon for her husband if the present defendant is convicted); 1860, R. v. Halliday, 8 Cox Cr. 298; 1895, Republic v. Kahakauila, 10 Haw. 28 (adultery; husband of one of the defendants, held improperly admitted to prove the marriage); 1871, Miner v. State, 58 Ill. 59 (adultery; co-indictee's husband, excluded); 1838, State v. Burlingham, 15 Me. 104, 107 (wife of co-defendant charged with conspiracy, excluded). Contra: 1669, R. v. Buckworth, 2 Keb. 403 (perjury; "the husband of one of the defendants may be admitted to prove the issue, I albeit not to prove or excuse his wife's subornation of the other defendant"; by two judges). |