Tlie defendant and appellant was indicted by tlie grand jury of tlie first district on tlie nintli day of January, 1886, and charged with the crime of uulawful cohabitation during the year 1884 with Diana White and Jane Eyfo White. He was arraigned on the indictment on the sixth day of March, 1886, and pleaded not guilty. The case coming on for trial, Jane Eyfe White was called and offered as a witness for the government. The appellant objected to her being sworn as a witness against him, on the ground that she was his legal wife, and therefore incompetent to testify against him. Thereupon the appellant introduced testimony in support of his objection.
It was developed by the testimony that Diana White was the first wife of the defendant, and that the defendant contracted a plural marriage with the witness 10 years ago. Subsequently, and about the month of January, 1886, Diana White died. The defendant continued to live with Jane until April 12, 1886, when a marriage ceremony was performed between them by B. E. Madsen, of Box Elder county. It transpired from the testimony that the sole object in having the marriage ceremony performed was to close the mouth of the witness, and to prevent the government from obtaining her testimony.
The court was clearly in error in ruling that the witness should testify. The witness not having been the lawful wife of the defendant at the time of the alleged offense of cohabitation, there was no crime committed against her which might possibly, although we do not determine the point, make her a competent witness under our statute. Besides, it makes no difference at what time the relationship of husband and wife commences, the principle of exclusion applies, to its full extent, whenever the interests of either are directly concerned: 1 Greenl. Ev., secs. 334, 336. When one married a witness already subpoenaed by his opponent to testify on the approaching trial, she was excluded: Pedley v. Wellesley, 3 Car. and P., 558. See State v. Armstrong, 4 Minn., 335 (Gil. 251).
It is argued that it is contrary to public policy to permit parties to defeat the ends of justice, by entering into
The judgment of the court below is reversed, and a new trial is ordered.