Crawford v. State
74 N.W. 537
Wis.
1898
Check Treatment

The following opinion was filed March 22, 1898:

Cassoday, 0. J.

The plaintiff in error was tried and convicted of the crime of adultery, and sentenced to imprison*624ment in the state prison for the term of two years, and to reverse that judgment he’sues out this writ of error.

Upon the trial his wife was admitted as a witness in behalf of the state, and allowed to testify. This was manifest •error. It is well settled that “ neither husband nor wife can be a witness at common law for or against the other in prosecutions” for adultery. 2 Whart. Orim. Law (10th ed.); § 1786; 1 G-reenl. Ev. § 334; 3 Jones, Ev. § 751; Mills v. U. S. 1 Pin. 73; Schoeffler v. State, 3 Wis. 823, 844. “ With certain exceptions, it was, at common law, against public policy to allow the wife to be a witness for or against her husband in any action, civil or criminal, to which she was not a party.” Smith v. Merrill, 75 Wis. 462. The case at. bar does not come within any exception. Nor is there any statute in this state making the wife a competent witness against the husband in such a case. Certainly sec. 4072, R. S. 1878, does not. See Farrell v. Ledwell, 21 Wis. 182; Carney v. Gleissner, 58 Wis. 674; Selden v. State, 74 Wis. 271; Smith v. Merrill, 75 Wis. 461; Horner v. Yance, 93 Wis. 352; Lanctot v. State, ante, p. 136.

By the Court.— The judgment of the circuit court is reversed, and the cause remanded for a new trial.