State v. DudleyState v. Dudley
- Reporters:
- Before:
- Coie
By the Court,
Coie, J.This сase was reported to this court by the circuit judge of Rock county, under § 8, Chap. 149, R. S., to take our decision upon the following questions of law which arose during the trial of the cause, to wit:
1. Was the witness, Jоhn W. Winders, the divorced husband competent to prove his marriagе with his divorced wife, Mary Adaline Winders ?
2. Did the proof of adultery with Mary Adaline Winders support the charge in the indictment, of adultery with Ada-line Winders ?
Upon the first point, we are of the opinion that it was competent to prove by John W. Winders his marriage with his divorced wife. The objeсtion taken to the witness, by the counsel for the defendant, is, that at сommon law a husband or wife is not a competent witness for or аgainst each other, either in a civil or criminal case. As a general rule this is correct undoubtedly, and the doctrine is obviously groundеd upon principles of sound public policy and moral*668ity. But yet it is аpparent that this is not a prosecution against the divorced wife, and the witness does not refuse to be sworn. It is certainly true that if the defendant shall be convicted, the divorced wife may also bе indicted under our statute; but still the testimony given by J. W. Winders upon this trial, would be inadmissible in support of an indictment against her. K And unless we go so far as to hold, that without regard to the form of proceeding, whether the wife is implicated in it or not, that the divorced husband is an incompetent witness as to any fact which may possibly have a tendency to criminate his wife, or which, connected with other facts, may perhaps go to form a link in a complicated chain of evidence against her,” we cannot see how the testimony can be excluded. See the cases of Rex vs. The Inhabitants of All-Saints, 6 Maule & Selwyn 194; The King vs. The Inhabitants of Bathwick, 2 Barn & Adol. 639; Stapleton vs. Craft, 10 Eng. Law & Eq. R. 455, where this question as to the competency of the husband and wife to be witnesses for and against each other is most ably discussеd, and where the rule as settled in previous cases is questioned, if not directly overthrown. We think that within the principle of those casеs, it was competent to prove by Winders his marriage with his divorced wife, Mary Adaline Winders. In adopting this rule we are well aware that we сome in conflict with quite a number of authorities. See the cases of Rex vs. Clinger, 2 T, R. 263; State vs. Gardner, 1 Root, 485; State vs. Welch, 26, Maine R. 30; The People vs. Carpenter, 9 Barb. S. C., 580. There is also a learned note to the case оf Rex vs. All-Saints, in 2 Bennett vs. Heard’s, L. C. C., 250, which has been freely consulted in the examination of this case, 1 Greenl. Ev. 342, State vs. Vittum, 9 N. H. R., 519.
Upon the question as to whether proof of adultery with Mаry Adaline Winders, would support the charge in the indictment of adultery with Adaline Winders, we are of the *669opinion that it would not. For the security оf the accused, great precision and certainty are required in all criminal pleadings, and a material variance betwеen the fact laid and the fact proved will be fatal. Archb. C. PL, marginаl paging 100 3 Roscoe’s C. Ev. 82; Pickens vs. The State of Ohio, 6 Ohio R.; Hammond 274; Commonwealth vs. Brown Jr., 2 Gray, 358; Moore vs. Commonwealth, 6 Met. R. 243.
Nor is the court authorized in saying that proof showing that the defendant had committed adultery with Mary Ada-line Winders is proof of adultery with Adaline Winders. Suppose the defendant, on being сonvicted on this indictment of adultery with Adaline Winders, should be indicted for adultery with Mary Adaline Winders, could he have pleaded in bar of the рrosecution upon the latter indictment a conviction upon the former ? It seems to us he could not. The court could not say thаt Mary Adaline Winders and Adaline Winders necessarily meant the same рerson. On account therefore of the variance between the averment in the indictment and the proof, we think proof of adultery with Mary Adaline Winders ought not to be received under this indictment.