57 Miss. 243 | Miss. | 1879
delivered the opinion of the court.
The plaintiff in error was indicted for arson and convicted. On the trial, his wife was offered by the prosecution as a witness against him. He objected to her competency; but the court, after informing her “ that she need not testify against her husband unless she was willing to do so, and that the law would not compel her,” adjudged that she was competent, if she testified willingly. The wife then proceeded to give very material testimony against her husband, a part of which was that the husband asked her to swear falsely in his behalf, as to the whereabouts of the principal witness for the State on the night of the burning. Exceptions were taken to this ruling of the court, as to the competency of the wife, but no additional exception was taken to the admission of the part of her testimony above stated.
At common law the husband and wife were incompetent as witnesses for or against each other. This incompetency was placed by the courts upon two grounds: One, the unity and identity of husband and wife in interest, so that when one was excluded on the ground of interest the other was also excluded; the other had reference to public policy. For, as
In Lockhart v. Luker, 36 Miss. 68, the High Court of Errors and Appeals, omitting all consideration of the second ground above mentioned of the incompeteney of husband and wife as witnesses for or against each other, decided that the wife might be a witness for her husband in a civil suit, because the husband might be a witness in his own behalf. But in Dunlap v. Hearn, 37 Miss. 471, the court overruled Lockhart v. Luker, and held, in accordance with the above quotation from Green-leaf, that there were grave reasons of public policy for the exclusion of husband and wife as witnesses for or against each other, besides the objection on account of interest; and they excluded, in that case, the wife when offered in a civil suit in behalf of her husband.
Under the Code of 1871, § 760, husband and wife are expressly made competent witnesses for each other in civil eases, and by § 759 it is provided that “husband and wife may be witnesses for each other in all criminal cases, but they shall not be required to testify against each other, as witnesses for the prosecution. Nothing herein contained shall be so construed as to debar full cross-examination by the prosecution of any husband or wife of an accused party who may be placed on the stand for the defence.” The learned judge who presided in the court below held that, under this section, the wife may be a voluntary witness for the prosecution, against her husband’s consent. We are constrained to differ from him in the construction he has placed on this statute. The statute is in derogation of a very ancient aud well established rule of the common law, based, as we have above seen, in great part,
But if we are to construe this language to mean that the legislature thought that by the common law husband and wife might be required to testify against each other when they were allowed to testify in behalf of each other; and to infer that this provision was inserted to prevent the operation of such a rule without the consent of the party offered as a witness, it does not follow that we are to construe the provision as making, this erroneously supposed rule 'of the common law a part of the statutes of the State. An enactment of the legislature based on an evident misconception of what the law is will not have the effect, per se, of changing the law so as to make it accord' with the misconception. Davis v. Delpit, 25 Miss. 445.
For the error in admitting the wife to testify against the husband, against his objection, the judgment is reversed and a new trial granted, and cause remanded. So ordered.