Commonwealth v. Fitzpatrick

18 Pa. Super. 529, 1901 Pa. Super. LEXIS 234

• Court: Superior Court of Pennsylvania
• Decided: December 16, 1901
• Docket: Appeal, No. 235
• Status: Published

Opinion

Pee Cubiam,

The act of 1887 provides, that either husband or wife shall be competent to prove the fact of marriage in support of a criminal charge of adultery alleged to have been committed by or with the other. According to the construction contended for by the appellant, the statute simply deprives the accused or implicated party of the right to object to the admission of the testimony of her husband or his wife as to the fact of marriage, but does not deprive the latter of the right to refuse to give such testimony. We are unable to adopt this construction. The rule of the common law having been so far abrogated as to make a husband or wife a competent witness against the other in certain issues and as to a certain fact, he or she when called in such issue to testify as to such fact stands in the same situation as any other witness and can claim no other or greater privilege. Surely the party against whom the testimony is offered cannot object if the witness does not. The bill of exceptions does not show that the husband of the defendant objected, or requested to be excused from testifying to the fact of marriage, and, of course, we can consider nothing but what appears therein. So that in any view of the law the court committed no error in admitting the testimony.

The second assignment of error was not pressed for the reason that the clerical error in recording the sentence was duly corrected by the court.

The judgment is affirmed and the record is remitted to the court below to the end that the sentence be carried into effect.