Since 9 G. IV., therefore, the incompetency of offenders in every kind of offence, except perjury and subornation of perjury, was removable; but remained until the punishment was suffered, or a pardon granted under the great seal (n), or by warrant under the sign manual (0).

Case of Husband or only one relationship In no cases, except

Connection of Witness with Prisoner in the Wife.]-In criminal, as in civil cases, there is which disqualifies, viz. that of husband and wife. those where either husband or wife complains of an injury directly inflicted by the one on the other, can either party in this connection give evidence for or against the other. They cannot be witnesses for each other, because their interests are supposed to be the same; nor can they be either required or allowed to give adverse testimony, on account of the respect which the law has for the sacredness of the marriage tie, and the comfort and security of domestic life; and so strenuously has this policy been sustained, that Lord Hardwicke, in a civil case, refused to permit a wife to give evidence for her husband, though the other party consented (p). The wife of a receiver who is not indicted, cannot be compelled to give evidence against a prisoner accused of the larceny (q), nor to be sworn or give evidence against another in case of theft, &c. if her husband be concerned, though material against another, and not directly against her husband (r), nor to prove an alibi set up by a prisoner arraigned and tried with her husband for a felony charged against them jointly, though such alibi be totally unconnected with her husband's defence of a similar kind supported by other testimony (s). For as her evidence would go to

(n) And a convict, having received judgment of death, was an incompetent witness, though he produced a pardon under the sign manual; for nothing but a pardon under the great seal would at common law restore him, R. v. Gully, 1 Leach, 981; 1 Stark. Ev. 2nd ed. 100.

(0) By 7 & 8 G. IV. c. 28, s. 13, where the king shall extend his mercy to any offender convicted of any felony, and by warrant under his sign manual, countersigned by a principal secretary of state, shall grant to such offender either a free or conditional pardon, the discharge of such offender out of custody in the case of a free pardon, and the performance of the condition, to be proved by the party who tenders the witness, 2 Stark. Ev. 2nd ed. 101, in case of a conditional pardon, shall have the effect

of a pardon under the great seal as to the felony in respect of which such par. don was granted. See 4 G. 1. c. 11, s. 2; 5 B. & Cr. 585, Doe d. Evans v. Evans.

(p) Cas. temp. Hard. 264; 1 Hale's C. 301. Like refusal in a criminal case where the husband consented to the wife being examined against him, 1 Hale, P. C. 47.

(q) R. v. Ast, Carr. Cr. L. 66, Macdonald, C. B., and Lawrence, J., from Mr. Alley's MSS.

(r) Dalt. c. 111, cited 1 Hale, P. C. 301. Secus, after her husband's conviction, R. v. Matthew Williams, cor. Alderson, B., 8 C. & P. 284; but see R. v. Grattan, Carr. C. L. 66.

(8) See R. v. Rudd, Leach, 154; I St. Evid. 103, 2nd ed.

show that the witness against her husband was mistaken as to the other prisoner, that would be to benefit her husband incidentally by indirectly weakening the evidence against him as well as against the prisoner, on whose behalf she was examined (s). And it had been long before held in misdemeanour, that the wife of one of several defendants charged as conspirators could not be a witness for the others, as their acquittal might incidentally procure the discharge of her husband (t). But if the evidence of either husband or wife can have no further effect than a latent possibility of inconvenience to the other, without contradicting his or her testimony previously given in the same cause, and without criminating, or furnishing matter which might be used as evidence to support a charge against that other, a mere tendency in the proof to have that effect will not prevent the testimony from being given; though the witness may object to undergo the examination, as likely to criminate the wife or husband. Thus where a pauper woman who had been married, was removed to her maiden settlement, the removal was supported by proof that the man to whom she married had before his marriage to her been married to another woman, who was still alive at the time of the second marriage; and it was held that this might be properly proved by the first wife (u).

In cases of personal violence or wrong, however, the wife is from necessity a competent witness against the husband, and the husband against the wife; thus the wife has been admitted to give evidence against her husband, on a charge against him for attempting to poison (x), or for assaulting or assisting in a rape on her (y); or on any other charge affecting her liberty and person (z). On a charge of conspiracy to affect the marriage of a minor by unlawful means, the lady, even though lawfully married, is a witness against her hus

(8) R. v. Hood, 1 Mood. C. C. 281; R. v. Joseph Smith and others, id. 289. So, in civil cases, the wife of a party to the record is still inadmissible notwithstanding 6 & 7 Vict. c. 85. Hawkesworth v. Showler, 11 M. & W. 45.

(t) R. v. Lockyer and others, 5 Esp. N. P.C. 107; R. v. Frederick and Tracy, Stra. 1095; R. v. Sherman, Ca. t. Hard. 303. Indictment against several for assault. The wife of one defendant cannot be a witness for another defendant, for it is impossible to separate the cases of the two.

(u) R. v. All Saints, Worcester, (Inh.), 6 M. & S. 194, overruling R. v. Cliviger, 2 T. R. 263. A. & B. were indicted for

burglary and stealing; part of the stolen property was found in the house of each, Tindal, C. J., held the wife of A. competent to prove that she took to B.'s house the stolen chattel found there, Reg. v. Sills, 1 C. & Kir. 494.

(x) R. v. Whitehouse, 2 Russ. C. & M. 606.

(y) Bull. N. P. 187, Castlehaven's (Lord) case; 1 Hale, 301; 2 Stark. Ev. 900, 2nd ed.

(z) Per Hullock, B., in R. v. Wakefield, 2 Russ. C. & M. 607; Castlehaven's case, 2 Stark. Ev. 900, 2nd ed.; 1 Hale, 629; 12 Mod. 340; Hutton, 116; 1 St. Tri. 387; Stra. 633.

band (a); though a husband has been rejected by Lord Tenterden on an indictment for conspiring to effect his marriage; and it seems that wherever the one party would be a witness against the other, that party is competent for the other (b).

No other tie except that of marriage, nor any relationship, however near, ever disqualified a witness. A parent might be a witness for or against a child, brothers and sisters for or against each other, and parties who had cohabited for however long a time without marriage and each of these might be compelled to give evidence against the party to whom he or she is related. Where, however, a woman had always passed as the wife of the prisoner, and had been so alluded to by him during the trial, Lord Kenyon refused to allow her to be examined for him on her proposing to be sworn, and denying the marriage (c).

Prosecutor, or Party entitled to Reward-Accomplice.]-In cases of larceny, the party whose goods were stolen was always competent, though the restitution of his goods might depend on the result of the trial (d).

So was a party who would be entitled to a reward on conviction, whether given by statute, or offered by proclamation, or by a private individual (e), nor was a man disqualified by having laid a wager on the result of the trial (ƒ). An accomplice, though brought in custody, and giving evidence under the expectation of a pardon, was always a competent witness. The usual mode of admitting him to give evidence is on the motion of counsel, who having read the depositions, takes on himself the responsibility of stating to the court, that in his judgment it is necessary to the ends of justice that the accomplice should go before the grand jury. As that course is for the justification of the gaoler, for carrying the witness who happens to be in his

(a) R. v. Wakefield, 2 Russ. C. & M. 605. So held in R. v. Fulwood, Cro. Car. 488. See ante; and Brown's case, 1 Hale, 301, a case of abduction, where the force continued to the time of the marriage.

(b) See R. v. Serjeant et al. Ry. & M. N. P. C. 354, where the husband was rejected.

(c) Dict. Richards, C. B., 1 Pri. 83. (d) R. v. Muscot, 10 Mod. 193. This rule perhaps might arise from the particular wording of the statute 21 H. VIII. c. 11, by which restitution was given, see the Reporter's note, R. v. Beavan, Ry. & M. N. P. C. 242; before that act

was repealed by 7 & 8 G. IV. c. 27, and replaced by 7 & 8 G. IV. c. 29, s. 57: for the party aggrieved or dispossessed by forcible entry was not till 6 & 7 Vict. a competent witness for the prosecution on the trial of an indictment on the statute for a forcible entry, because on conviction he is entitled to be restored to the premises from which he has been ejected, R. v. Beavan; R. v. Williams, 9 B. & C. 549; 4 Man. & R. 471, S. C.

(e) Rioters, case of the, in 1780, 1 Leach, 314, in note. See 1 Stark. Ev. 2nd ed. 138, 139.

(f) R. v. Fox, 1 Stra. 594.

custody before them, it is no objection to the evidence of an accomplice that he has been irregularly and improperly taken before the grand jury (g). Indeed, the implied condition of pardon under which an accomplice makes his disclosure is, not that the prisoner shall be convicted, but that he shall give a candid and fair account of the transaction; where he does this to the satisfaction of the court, he will receive his pardon, though there should be an acquittal; and on the other hand, if he obstinately prevaricates, he may be ordered into custody, indicted, tried, and punished.

In order to identify prisoners, a witness may be asked in direct terms whether any of the prisoners jointly indicted with the party tried is the person he means (h), and may have the party pointed out to him (i).

Parties jointly Indicted, how made Witnesses for each other.]— In general, one of several defendants standing jointly indicted, was not a competent witness for his fellows; nor though he had suffered judgment by default before their trial (k). But where there is no case for the jury against one party, the court may, in its discretion, allow of his acquittal in any stage of the cause before the reply, in order that he may be examined as a witness for the other defendants(1); but he is not entitled to demand an acquittal until all the other evidence for the defendants is concluded (m), and the whole case is thus ready for the jury (n).

Parties jointly Indicted, how made Witnesses for the Crown.]We have seen that the counsel for the prosecution in misdemeanour is entitled, before he opens his case, to obtain from the jury an acquittal of any of the defendants against whom he declines to offer evidence, proposing to examine them as witnesses (o). A witness may be heard for the defence, though himself charged with a participation in the crime, if he be not included in the same indictment (p).

(g) R. v. Dr. Dodd, 1 Leach, 155. (h) R. v. Watson, 2 Stark. C. N. P. 116.

(i) 8. C.; R. v. De Berenger, 3 M. & Sel. 67.

(k) R. v. Lafone and others, 5 Esp. N. P. C. 155.

(1) Hawk. B. 2, c. 46, s. 98. So held where there was a strong case against the prisoner proposed to be called as a witness, R. v. Owen and others, 9 C. & P. 83, Williams, J.

(m) Emmett v. Butler, 7 Taunt. 607; Wright v. Palin, Ry. & Mood. N. P. C.

128; Wynne v. Anderson, 3 C. & P. 596; Sowell v. Champion, 6 Ad. & E. 415, S. P. But Child v. Chamberlain, 6 C. & P. 213; 1 M. & Rob. 197, was contra, as was Russell v. Rider, 6 C. & P.; and see King v. Baker, 2 Ad. & E. 333.

(n) Per Lord Ellenborough, Huxley v. Berg et al. 1 Stark. C. N. P. 98; 1 Stark. Ev. 2nd ed. 132.

(0) R. v. Rowland et al. Ry. & M. N. P. C. 401. Ante, p. 494.

(p) Three were severally indicted (as they must be) for perjury in the same deposition; two who had pleaded, but

SECTION XII.

OF CALLING AND EXAMINING WITNESSES.

Witnesses desired to withdraw.]-It is frequently requested by one party, at the commencement of the trial, that the witnesses may withdraw, in order that they may not hear the examination of each other, or the speeches of counsel. This request is always complied with; and was often accompanied by an intimation from the court, that if any witnesses should remain, in disobedience of its order, they would not be permitted to give evidence (q). But where a witness does so remain, it is difficult to show by what authority a court can deprive either litigant party, not implicated in such misconduct, of testimony to which he is otherwise by law entitled. Were the law so, the result would be, that reluctant witnesses would avoid the necessity of giving evidence, by disobeying the order of the court, and intimating that disobedience to the party against whom their evidence, if examined, must be given, but whom they wish to favour; accordingly it has been lately held, that the testimony of such a witness cannot be excluded, though he may be committed for contempt, and his wilful disobedience of the order of the court calls for remarks on the value of his evidence (r). By the uniform practice of all courts, the attornies on both sides, whose presence is necessary to the conduct of the case, are excepted from the general order (s); and it is usual to extend the same indulgence to witnesses who are merely to prove matters of form, to medical witnesses, and to witnesses intended to depose to character only.

Obligation of Witness to appear.-Calling him on his Recognizance.]--If witnesses, when called, do not appear, they may be called on their recognizances if bound over to give evidence, or on their subponas if subpoenaed to attend, with a view to ulterior proceedings against them. Where the absconding or absence of a material witness

were untried, were held good witnesses on the first trial for the defendant, however strong their bias, having no legal interest in that issue, 1 Hale, 305. A. and B. were jointly indicted for breaking into the house of J. H. and stealing his goods therein. A. pleaded" guilty," B. "not guilty," and was tried. A.'s plea of "guilty was recorded, but no sentence had been passed on him. Coleridge, J., held B. entitled to call A. as a witness for himself. Reg. v. George and Ford, C. & Mar. 111.

(9) When judges have refused to hear the witness, it has been as a mere act of their discretion, and not required as a right by counsel, R. v. Wylde, 6 C. & P. 380; Beaman v. Ellice, 4 C. & P. 585.

(r) Chandler v. Horne, 2 M. & Rob. 423.

(8) Per Littledale, J., Pomeroy v. Baddeley, Ry. & M. N. P. C. 430; Everett v. Lowdham, 5 C. & P. 69, acc.; but R. v. Webb, 2 Stark. Ev. 2nd ed. 1733, contra.