56 Wash. 561 | Wash. | 1910
On the night of August 22, 1908, a barn belonging to Mildred Jane Kephart, was burned. Appellant, the husband of the complaining witness, was arrested on the next day, and was thereafter brought to trial. The
“Under the terms of our statute I hold the true rule to be that where the husband is on trial for an alleged offense which, if committed, was of such a nature that it did not affect the rights of the wife in the manner different from that of other members of the general body of society, then the wife is not a competent witness against the husband, without his consent. But in all cases where the offense charged is of such a nature that, if committed, it was a direct and specific invasion of the wife’s personal property rights, then the wife is a competent witness against her husband.”
A careful reading of the testimony confirms the observation of the prosecuting attorney that, without the testimony of the wife of the defendant, no conviction can be had. In the case of State v. Kniffen, 44 Wash. 485, 87 Pac. 837, 120 Am. St. 1009, a bigamy case, the statute, Bal. Code, § 5994, which disqualifies a wife as a witness against her husband, was under consideration. After noting the conflict of authority in the application of this statute, the court said:
“In Bassett v. United States, supra [137 U. S. 496], the supreme court of the United States considered the cases cited above from Minnesota, Texas, Iowa and Nebraska, and concluded that a statute similar to our own was but an affirmation of the common law rule, and polygamy was a crime against the marriage relation, and not one committed by one spouse against the other. While much may be said in favor of the position that bigamy, adultery, and kindred crimes are committed by one spouse against the other, yet the weight of authority seems to be opposed to that rule. 30 Am. & Eng. Ency. Law (2d ed.), p. 956. We therefore feel bound to hold that in this case the court erred in permitting the first wife to testify against her accused husband.”
We have been treated to a scholarly discussion of this subject by the prosecuting attorney, who reviews the history of our statute and undertakes to make plain that the words “nor in a criminal action or proceeding for a crime
The point is made that Bal. Code, §§ 7094 and 7098, defining the crime of arson and providing that a married woman “who shall commit the crime may be punished therefor though the property set fire to may belong partially or wholly to her husband,” creates an exception. It is said that the latter section makes it certain that it was the intention of the code makers tó place the wife upon the same plane of criminal responsibility as her husband for every arson committed by her, and that the rational conclusion follows that, in order to make the statute effective, the husband must have the right to testify against the wife, § 7098 working, as it were, an implied exception to § 5994, and that the bar being raised in such cases as to the husband, it was of course raised as to the wife when the crime was committed under the same circumstances.
Courts are not warranted in changing rules of evidence to meet some theory of the law, however attractive it may be. The statute relied on was passed because it was held in the case of Rex v. March, 1 Moody 182, that a wife was not guilty of the crime of arson when the property destroyed belonged to her husband. This decision has no foundation in reason, but it has called for legislative expression in most of the states where the common law prevails. The decision did not, nor do we know of any statute enacted because of it which makes any exception to the rule of evidence which we
Public policy, as at present defined, demands, on the one hand, that the sanctity and harmony of the marital relation be preserved; and on the other, it insists that one spouse shall not maintain a suit, or, unless within a recognized exception, be deprived of his liberty or his property, by the testimony of the other. Experience has taught us that in most cases where the testimony of the husband or wife is taken for dr against the other, the truth is obscured and' justice hoodwinked. There is nothing more dangerous to truth than testimony prompted by conjugal affection, unless it be the echoes of a shattered home where love has flown and hatred broods expectant for the fray. These are the reasons underlying the common law rule, a rule wisely fixed to meet the actual questions and conditions confronting
Reversed and remanded.
Rudkin, C. J., Fullerton, Morris, and Gose, JJ., concur.