Crawford v. State

74 N.W. 537, 98 Wis. 623, 1898 Wisc. LEXIS 187

Opinion

The following opinion was filed March 22, 1898:

Cassoday, 0. J.

The plaintiff in error was tried and convicted of the crime of adultery, and sentenced to imprisonment in the state prison for the term of two years, and to reverse that judgment he’sues out this writ of error.

Upon the trial his wife was admitted as a witness in behalf of the state, and allowed to testify. This was manifest •error. It is well settled that “ neither husband nor wife can be a witness at common law for or against the other in prosecutions” for adultery. 2 Whart. Orim. Law (10th ed.); § 1786; 1 G-reenl. Ev. § 334; 3 Jones, Ev. § 751; Mills v. U. S. 1 Pin. 73; Schoeffler v. State, 3 Wis. 823, 844. “ With certain exceptions, it was, at common law, against public policy to allow the wife to be a witness for or against her husband in any action, civil or criminal, to which she was not a party.” Smith v. Merrill, 75 Wis. 462. The case at. bar does not come within any exception. Nor is there any statute in this state making the wife a competent witness against the husband in such a case. Certainly sec. 4072, R. S. 1878, does not. See Farrell v. Ledwell, 21 Wis. 182; Carney v. Gleissner, 58 Wis. 674; Selden v. State, 74 Wis. 271; Smith v. Merrill, 75 Wis. 461; Horner v. Yance, 93 Wis. 352; Lanctot v. State, ante, p. 136.

By the Court.— The judgment of the circuit court is reversed, and the cause remanded for a new trial.