SOMERYILLE, J.
— It may now be considered as a settled rule of criminal evidence, that, where several persons are tried together under a joint indictment, the wife of neither of the defendants is a competent witness for or against a co-defendant of her husband, where her testimony affects the interest of her husband. — Whart. Cr. Ev. §§ 391-392; 1 Greenl. Ev. § 335 ; Roscoe’s Cr. Ev. 124* ; Com. v. Robinson, 1 Gray, 555.
Where, however, the husband is not a party to the record, whether by reason of a failure to indict him, or of the entering of a nolle-prosegui against him, no reason is perceived why the testimony of the wife should be held incompetent in the prosecution of an accomplice of her husband. — 1 Bishop Cr. Proc. (3d Ed. 1880), §§ 1019-1020. The proceeding then becomes a collateral one, in which the interests of the husband can not be judicially affected. And, in such cases, where neither the husband nor the wife is a party defendant to the cause, so as to [39]*39be directly interested, the testimony of either may be received, although its tendency is to criminate the other. The main reason is, that judgment of acquittal or conviction can not be used in evidence against or in favor of the husband, or wife, as the case may be, in the event of their subsequent indictment and trial. It would be res inter cilios acta as to them. — State v. Bridgman (49 Vt. 202), 24 Am. Rep. 124; Moffit v. State, 2 Humph. (Tenn.) 99; 1 Greenl. Ev. § 342; 1 Archbold’s Or. Pr. & Pl. (Pomeroy) 472, [153*], note 1; 3 Russell’s Cr. (9th Ed.), 630*; State v. Briggs, (9 B. I. 361), 11 Amer. Rep. 270. As said in State v. Briggs, supra, its effect, at most, would be only as information, and not as evidence against the husband, because it could not be used as evidence against him in a subsequent direct proceeding. Nor does the wife’s admission as a witness violate the principles of public policy founded in the relation of husband and wife, “ because she is not offered as a witness for or against him.” — Moffit v. State (2 Humph. 99), 36 Amer. Dec. 301, 303. The broad rule, indeed, is asserted by Mr. Greenleaf, that where the grounds of defense are several and distinct, and in no-way dependent on each other, no reason is perceived why the wife even of one defendant should not be admitted as a witness for a co-defendant. 1 Greenl. Ev. § 335. And this doctrine is supported by Mr. Wharton, with the qualification, of course, that it shall not apply in cases where the acquittal.of one defendant shall operate necessarily as the acquittal of the other. — Whart. Cr. Ev. §§ 392, 445; United States v. Addate, 6 Blatchf. 76. Among the latter class of cases, may be enumerated the offenses of riot, conspiracy, adultery, and the like. — Moffit v. State, supra.
The principle seems to be sound, and supported by authority, that in all such cases, where any co-defendant is admissible, his wife is also admissible, the husband not being a party, nor otherwise directly interested. — Whart. Cr. Ev. (8th Ed.), §§ 391, 445 ; Bell v. Coiel, 27 Amer. Dec. 448.
We admit that there is a conflict of' authority in reference to this question, and there are well considered decisions adverse to some of the view's which we here express. But the better opinion, with the growing tendency of later judicial decisions, is believed to be in harmony with the conclusions reached by us. We may add, that, where the testimony of husband or wife, even in a collateral matter, tends to criminate the other, while it will be admitted, it seems that it wall not be compelled. The more reasonable view is to admit such testimony, in all cases “ where it can not be used as an instrument of future prosecution, provided the witness be not compelled to testify.” [40]*401 Whart. Cr. Ev. §§ 432, 425 ; State v. Dudley, 7 Wis. 664 ; State v. Briggs, 11 Amer. Rep. 270, supra.
The court did not err in admitting the testimony of the witness, Hilly Bennett. Iler husband, although indicted originally as a party defendant in the case, was no longer a party to the record; the nolle-prosequi which had been entered, for the purpose of making a State witness of him, operating to discharge him from the prosecution, and as an acquittal, if he should testify truly and fairly upon the trial. — Marler v. State, 68 Ala. 580 ; Code (1876), § 4893. The husband, although an accomplice, was a competent witness, and the wife was equally so, she interposing no objection.
The third charge requested» by the defendants, and refused by the court, raises the question as to whether tlie'testimony of the wife of an accomplice may be legally regarded as a corroboration of the testimony of the accomplice himself, within the meaning of section 4.-895 of the Code, which prohibits a conviction of felony on the uncorroborated testimony of an accomplice. It has been held in an English case, comparatively modern, that confirmation by the wife is “ no confirmation at all,” the wife and the accomplice being only taken as one. — Rex v. Neal, 7 C. & P. 168; 3 Russell Cr. (9th Ed.) 608. Hr. Phillips observes of this case, that its circumstances “ might have been such as to warrant this decision.” “ But,” he adds, “it may often happen, that the evidence of the wife is so free from suspicion, so independent of the evidence of the husband, so manifestly unconcerted and uncontrived, and so undesignedly corroborative of his evidence, that it might be proper not to consider the acccomplice and his wife as one, lent to act upon her evidence as sufficient corroboration.” -1 Phil. Ev. 33. The only ground upon which the rule declared in Rex v. Neal can be reasonably sustained, would seem to be, that the interests of the husband and wife are so nearly identical, and the domination of the former over the latter so powerful and irresistible, that she must necessarily be warped in her testimony by the potency of these considerations, regardless of the sanctity of her oath. There is much force in this view, but it is based rather upon theoretical than practical reasons, and finds little or no support among the adjudged cases in this country. It is a corollary from the proposition of the ancient common law, holding to the abrogation of the wife’s legal entity by a complete merger of it into that of her husband, — a theory which has been modified by recent legislation, and the changed status of the wife, as wrought by the refining usage of a more cultured civilization. The wife, under our laws, may be the owner of her separate estate, in a more real sense than ever before. She may dispose of it by will, so as to cut off the [41]*41claims of her husband, thus rendering her, to a great extent, financially independent of him. She may be declared a “ free-dealer” by a court of chancery, so as to invest her with important powers over her own property, whenever her interests require it. She may procure the removal of her husband from the trusteeship of her property, when his conduct shows him to be unfit for its management. So, she may be divorced from her husband upon the grounds of his cruelty to, or abandonment of her. Nor is the husband's power of corporal punishment over her now recognized, as it seems to have been in the early history of the common law.
Free access — add to your briefcase to read the full text and ask questions with AI
SOMERYILLE, J.
— It may now be considered as a settled rule of criminal evidence, that, where several persons are tried together under a joint indictment, the wife of neither of the defendants is a competent witness for or against a co-defendant of her husband, where her testimony affects the interest of her husband. — Whart. Cr. Ev. §§ 391-392; 1 Greenl. Ev. § 335 ; Roscoe’s Cr. Ev. 124* ; Com. v. Robinson, 1 Gray, 555.
Where, however, the husband is not a party to the record, whether by reason of a failure to indict him, or of the entering of a nolle-prosegui against him, no reason is perceived why the testimony of the wife should be held incompetent in the prosecution of an accomplice of her husband. — 1 Bishop Cr. Proc. (3d Ed. 1880), §§ 1019-1020. The proceeding then becomes a collateral one, in which the interests of the husband can not be judicially affected. And, in such cases, where neither the husband nor the wife is a party defendant to the cause, so as to [39]*39be directly interested, the testimony of either may be received, although its tendency is to criminate the other. The main reason is, that judgment of acquittal or conviction can not be used in evidence against or in favor of the husband, or wife, as the case may be, in the event of their subsequent indictment and trial. It would be res inter cilios acta as to them. — State v. Bridgman (49 Vt. 202), 24 Am. Rep. 124; Moffit v. State, 2 Humph. (Tenn.) 99; 1 Greenl. Ev. § 342; 1 Archbold’s Or. Pr. & Pl. (Pomeroy) 472, [153*], note 1; 3 Russell’s Cr. (9th Ed.), 630*; State v. Briggs, (9 B. I. 361), 11 Amer. Rep. 270. As said in State v. Briggs, supra, its effect, at most, would be only as information, and not as evidence against the husband, because it could not be used as evidence against him in a subsequent direct proceeding. Nor does the wife’s admission as a witness violate the principles of public policy founded in the relation of husband and wife, “ because she is not offered as a witness for or against him.” — Moffit v. State (2 Humph. 99), 36 Amer. Dec. 301, 303. The broad rule, indeed, is asserted by Mr. Greenleaf, that where the grounds of defense are several and distinct, and in no-way dependent on each other, no reason is perceived why the wife even of one defendant should not be admitted as a witness for a co-defendant. 1 Greenl. Ev. § 335. And this doctrine is supported by Mr. Wharton, with the qualification, of course, that it shall not apply in cases where the acquittal.of one defendant shall operate necessarily as the acquittal of the other. — Whart. Cr. Ev. §§ 392, 445; United States v. Addate, 6 Blatchf. 76. Among the latter class of cases, may be enumerated the offenses of riot, conspiracy, adultery, and the like. — Moffit v. State, supra.
The principle seems to be sound, and supported by authority, that in all such cases, where any co-defendant is admissible, his wife is also admissible, the husband not being a party, nor otherwise directly interested. — Whart. Cr. Ev. (8th Ed.), §§ 391, 445 ; Bell v. Coiel, 27 Amer. Dec. 448.
We admit that there is a conflict of' authority in reference to this question, and there are well considered decisions adverse to some of the view's which we here express. But the better opinion, with the growing tendency of later judicial decisions, is believed to be in harmony with the conclusions reached by us. We may add, that, where the testimony of husband or wife, even in a collateral matter, tends to criminate the other, while it will be admitted, it seems that it wall not be compelled. The more reasonable view is to admit such testimony, in all cases “ where it can not be used as an instrument of future prosecution, provided the witness be not compelled to testify.” [40]*401 Whart. Cr. Ev. §§ 432, 425 ; State v. Dudley, 7 Wis. 664 ; State v. Briggs, 11 Amer. Rep. 270, supra.
The court did not err in admitting the testimony of the witness, Hilly Bennett. Iler husband, although indicted originally as a party defendant in the case, was no longer a party to the record; the nolle-prosequi which had been entered, for the purpose of making a State witness of him, operating to discharge him from the prosecution, and as an acquittal, if he should testify truly and fairly upon the trial. — Marler v. State, 68 Ala. 580 ; Code (1876), § 4893. The husband, although an accomplice, was a competent witness, and the wife was equally so, she interposing no objection.
The third charge requested» by the defendants, and refused by the court, raises the question as to whether tlie'testimony of the wife of an accomplice may be legally regarded as a corroboration of the testimony of the accomplice himself, within the meaning of section 4.-895 of the Code, which prohibits a conviction of felony on the uncorroborated testimony of an accomplice. It has been held in an English case, comparatively modern, that confirmation by the wife is “ no confirmation at all,” the wife and the accomplice being only taken as one. — Rex v. Neal, 7 C. & P. 168; 3 Russell Cr. (9th Ed.) 608. Hr. Phillips observes of this case, that its circumstances “ might have been such as to warrant this decision.” “ But,” he adds, “it may often happen, that the evidence of the wife is so free from suspicion, so independent of the evidence of the husband, so manifestly unconcerted and uncontrived, and so undesignedly corroborative of his evidence, that it might be proper not to consider the acccomplice and his wife as one, lent to act upon her evidence as sufficient corroboration.” -1 Phil. Ev. 33. The only ground upon which the rule declared in Rex v. Neal can be reasonably sustained, would seem to be, that the interests of the husband and wife are so nearly identical, and the domination of the former over the latter so powerful and irresistible, that she must necessarily be warped in her testimony by the potency of these considerations, regardless of the sanctity of her oath. There is much force in this view, but it is based rather upon theoretical than practical reasons, and finds little or no support among the adjudged cases in this country. It is a corollary from the proposition of the ancient common law, holding to the abrogation of the wife’s legal entity by a complete merger of it into that of her husband, — a theory which has been modified by recent legislation, and the changed status of the wife, as wrought by the refining usage of a more cultured civilization. The wife, under our laws, may be the owner of her separate estate, in a more real sense than ever before. She may dispose of it by will, so as to cut off the [41]*41claims of her husband, thus rendering her, to a great extent, financially independent of him. She may be declared a “ free-dealer” by a court of chancery, so as to invest her with important powers over her own property, whenever her interests require it. She may procure the removal of her husband from the trusteeship of her property, when his conduct shows him to be unfit for its management. So, she may be divorced from her husband upon the grounds of his cruelty to, or abandonment of her. Nor is the husband's power of corporal punishment over her now recognized, as it seems to have been in the early history of the common law. The American authorities generally support the view,, that the testimony of the wife may be a satisfactory and sufficient corroboration of her husband, who testifies as an accomplice, within the discretion of the jury, so as to warrant .a conviction, in cases where such corroboration is requisite. The fact of the relationship, and the danger of marital domination on the part of the husband, go, it is true, largely to assail the credibility of the wife, but not to her competency; and the degree of weight which should be accorded to her testimony must be left to the jury. It may sometimes constitute a very weak corroboration, yet it can not justly be said to be absolutely no corroboration at all. The case bears no similitude to that of an accomplice, whose testimony, it has been held, can not confirm that of another accomplice in the same crime. — 1 Greenl. Ev. § 380 ; 3 Russell Cr. 609 ; Rex v. Noakes, 5 Car. & P. 326. The reason is, that each is contaminated by the turpitude of the same guilt, and the same infirmity therefore attaches alike to the testimony of both. This view is taken generally by the American courts, where the question has been considered and decided. — Dill v. The State, 1 Tex. Ct. App. 278 ; State v. Mone, 28 Iowa, 128; Haskins v. The People, 16 N. Y. 344; 1 Bish. Cr. Proc. (3d Ed. 1880) § 1170.
We need not consider the other two charges which were requested by the defendant, and refused by the court. The exception taken is a general exception to the refusal of the court to give the three charges requested. One of these charges being erroneous, and properly refused, the general exception can not be sustained. — Stovall v. Fowler, 72 Ala. 77; Elliott v. Stocks, 67 Ala. 336.
The testimony of the witness Washington, as to the declarations made by the defendant Woods, was, in our opinion, admissible to show a motive for the commission of the offense charged. He declared his dissatisfaction with the settlement made between himself and Tunsta.ll, involving the identical cotton which is the subject of the larceny ; saying that “ he had got nothing out of his cotton, and that he was determined [42]*42to have satisfaction.” This language is susceptible of such construction as to announce a covert threat of reparation by means dishonest as well as honest. Its meaning was for the determination of the jury. The testimony of the witness Tun-stall, touching the same subject, though weaker than that of the witness Washington, had a like tendency to prove motive, and was also corroborative of Washington’s statement, and for this reason was admissible. — Morningstar v. The State, 55 Ala. 148; Hudson v. The State, 61 Ala. 333.
We find no error in the rulings of the court, and the judgment must be affirmed.