State v. West

118 Wis. 469 | Wis. | 1903

Marshall, J.

The rule is familiar that husband and wife cannot be witnesses for or against each other. Does that rule apply to the question in respect to which a decision is desired? Restating the court’s question in a proper form, to the end that it may be answered affirmatively or negatively, it is this: Is the rule that neither husband nor wife can testify for or against the other confined to where the testimony, if given, would be by one directly for or against the other, such other being a party to the litigation ? It must be conceded that there is authority both ways in respect thereto, but it seems, as claimed by the attorney general, that this court, in State v. Dudley, 7 Wis. 664, adopted the affirmative for this state. True, there is a difference between the manner in which the question was submitted there and here. Here is the former question: “Was the witness, John W. Winders, the divorced husband, competent to prove bis marriage with bis divorced wife, Mary Adaline Winders?” While that question was limited by two circumstances, first, the witness and bis wife were divorced between the time of trial and the alleged commission of the offense, and second, be was a witness merely of the fact of marriage, nevertheless the affirmative of the question was maintained as not falling within the general common-law rule, and the court considered and decided it from that standpoint, apparently not deeming material the circumstances distinguishing it from the one we have here. That is evident not only from the reasoning of the opinion, but from the authorities cited. In none of such authorities was the circumstance of a divorce present. In the cases cited as conflicting with the decision of the court are such as State v. Welch, 26 Me. 30, where the proposition was whether, on the prosecution of a man for adultery, the husband of the woman was competent to testify against him as to the fact of adultery, the decision being in the negative.

Whether the view which this court thus early took of the law is the better one we need not here discuss, nor whether it is supported by the greater weight of authority. Statements can be found in text-books both ways. Certain it is that many courts are in full harmony with this court on the subject. Campbell v. State, 133 Ala. 158, 32 South. 635, cited by the attorney general, is an instance of that. There it is said, in effect, that the law is well settled that a husband may testify on the trial of a party separately charged with being guilty of an offense committed jointly by him with the witness’ wife, subject to the rule as to confidential communications between husband and wife. Such communications are obviously covered by a rule which applies regardless of whether the evidence relates to a person on trial or not, both at common law and under the statute. Sec. 4072, Stats. 1898. In Wharton’s Crim. Ev. § 396, it is said:

“The mere fact that the testimony to be given by a wife criminates her husband, or that the testimony of the husband criminates the wife, does not exclude such testimony in prosecutions in which the party so criminated is not a defendant. Yet while such testimony will be admitted, it will not be compelled.”

Similar expressions can be found in the works of most text-writers. In 1 Ency. Ev. 633, it is said:

“Where the paramour is on trial the authorities are in conflict as to the admissibility of testimony of the husband or wife, the weight of authority holding it incompetent.”

An examination of the authorities cited, however, leaves one in doubt as to the correctness of the author’s view. It would require much time for a full review of the subject. We will not attempt it, since it appears, as before indicated, that the court’s question, as we have restated it, must be answered in the affirmative in harmony with the' previous decision rendered here.

By the Court. — The question submitted, as construed and restated, is answered in the affirmative.