The People agt. Briggs.

tion of adultery, except to prove the marriage. A wife is not a competent witness for or against her husband in an action for criminal conversation. A husband or wife shall not be compelled to disclose a confidential communication made by one to the other during the marriage.'

This relates to civil actions.

At the same session (by chapter 782, Laws of 1876) the legislature had enacted (April 27) that:

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"§ 2. In all criminal trials, and examinations before trial, a husband or wife may be examined as a witness on behalf of the other, but upon no such trial or examination shall a husband or wife be compelled to testify against the other."

Before this section the wife was not a competent witness against, or for, her husband.

The court of appeals had held that: "A wife is not competent witness against her husband in a civil action or proceeding" (Wilkie agt. People, 53 N. Y., 525).

It required an affirmative provision, making her competent on either side, to make her so. This section affirmatively declares she shall be for her husband, and then proceeds nega tively to say that she shall not be compelled to testify against him. There is no affirmative declaration that she may. A mere negative provision that she shall not be compelled to be, certainly is not an affirmative provision that she may be. When the act of 1876 was passed, no one would have claimed that, under any circumstances, she was competent against her husband. If not competent she could not be allowed to be sworn against him. Suppose the legislature had simply passed an act in the words of the last part of the section, "upon no such trial or examination (criminal trials and examinations before trial) shall a husband or wife be compelled to testify against the other." Would it have been anything more than a declaration of part of the law, as it then existed, that a husband or wife should not be compelled to testify against the other? It would have removed no existing incompetency. It would have given or conferred no competency.

The People agt. Briggs.

It is a novel proposition that the competency of a witness, as a witness against another party, depends upon the willingness of the witness to testify, without the slightest power on the part of either party, of the court, or of the law, to interfere or to have a word to say on the subject (See 22 Alb. L. J., 81).

The Iowa Code provides as follows:

"§ 3641. The husband nor wife shall in no case be a witness for or against the other, except in a criminal proceeding for a crime committed by one against the other, or in a civil action or proceeding one against the other, but they may in all civil and criminal cases, be witnesses for each other."

Under this statute in State agt. Houston (50 Iowa, 512), after conviction defendant sought to reverse the conviction on the ground that his wife was called as a witness before the grand jury.

The court said: "Amelia M. Houston, wife of the defendant, was examined and testified before the grand jury. It is insisted by the defendant that that fact rendered the indictment void, and that the verdict cannot be allowed to stand. The wife cannot be a witness against her husband except in a criminal prosecution for a crime committed against her, and in a civil action brought by one against the other, but she may be a witness for him in all cases (Code, sec. 3641). When the grand jury have reason to believe that evidence within its reach will explain away the charge, it may order such evidence to be provided (Code, sec. 4276).

"A witness, then, called before the grand jury is not necessarily called against the defendant. It might be the defendant's privilege that his wife should be called.

"If, however, where a defendant's wife is called, and the facts of which she has knowledge are unfavorable to the husband, it would be proper for her to object to testifying, and we think she could not be compelled to testify against her objection. If she testified, and her testimony was unfavorable to her hushand, so that it appeared that the indictment was found, in VOL. LX 5

The People agt. Briggs.

whole, or in part, upon her testimony, possibly the indictment might be quashed upon that ground. But the defendant should judge whether her testimony was favorable or unfavorable before proceeding to trial, and moved to quash if he thought there was ground for it. We think it too late to raise an objection of this kind after conviction."

The Texas Code provides that:

"The husband and wife can in no case testify against each other, except in a criminal prosecution for an offence committed by one against the other; but they may, in a criminal prosecution, be witnesses for each other" (1 Tex. App. Rep., 284).

In Dill agt. State (1 Tex. App. R., 278), the wife of one defendant was allowed to be called by the state under objection by the co-defendants of the husband. A nolle prosequi was subsequently entered in favor of her husband.

On error, after giving at length (pp. 282, 283), the reasons upon which the wife was not allowed to be called against the husband, and quoting the above section of the Code, the court (pp. 284, 285), says:

"It is further contended on the part of the state that when the nolle prosequi was entered as to the defendant, William Bell, he became a competent witness, and that if Mrs. Bell had then been placed on the stand there could have been no objection to her testimony; for that, as to the remaining defendants then on trial, she sustained no disqualifying relation, and stood disinterested, but that if there were any good objections to the testimony of Mrs. Bell at the time it was delivered, they were removed when a nolle prosequi was entered as to her husband. After mature reflection, and a careful examination of the authorities, we do not believe that she was a competent witness for the state against the appellants at the time she testified. The construction we put upon article 3113 is, that it was never intended so to change the rules of the common law as to make her a competent witness to testify against other defendants on trial with her husband,

The People agt. Briggs.

as in this case; for the article of the Code relied on says, the husband and wife can in no case testify against each other except in a criminal prosecution for an offence committed by one against the other. If her testimony was not competent at the time it was given, the entering of the nolle prosequi as to her husband did not remove the objections to it. After the nolle prosequi was entered she might have been called to the stand as a witness for the state, and her testimony would have been admissible. But this was not done."

In Hubbell agt. Grant (39 Mich., 641), it was held that : "The statutory rule that a husband may not testify against his wife without her consent, cannot be waived, in her absence, by the mere omission of her attorney to object to the testimony."

The court (pp. 643, 644), said: "Section 5969 of the compiled laws provides that the husband shall not be examined as a witness, for or against his wife without her consent. No consent was given in this case, and unless we can say that because no objection was made by Mrs. Grant to the examination of her husband she thereby waived the benefit of this provision, his testimony as against her cannot be considered and complainant must, therefore, fail. It does not appear that Mrs. Grant was present during the examination, or any part thereof, so that the failure to object, and a waiver thereby, must have been that of her attorney or solicitor in the case. The reason of the rule for excluding either husband or wife from being witness in a case in which the other was a party was so strong that, according to Professor Greenleaf, it could not be relaxed even by consent; that the public had also an interest in the preservation of domestic peace, which might be disturbed by the testimony notwithstanding the consent (1 Greenleaf Ev., sec. 340).

"If, then, the rule was so strict at common law, and our statute has so far relaxed it, that by consent they may be examined, can it mean that an actual assent is not necessary, but that consent may be implied from the mere silence of the

The People agt. Briggs.

other party or that of her solicitor in her absence? We are of opinion that this would be carrying the relaxation of the rule to an extent not comtemplated by the legislature. There may be cases where both parties are present and one is called as a witness, where a failure to object might be deemed a waiver, but in the absence of such party we are of opinion that her solicitor's silence could not supply the place of her actual consent."

In State agt. Donovan (41 Iowa, 587), under a statute somewhat similar to ours, the husband called his wife as a witness in his own behalf, and the court below refused to allow her to testify. The supreme court reversed the judgment, holding the husband had a right to call her in his own behalf; not a word was uttered about her being competent against her husband.

The motion should be granted.

Lansing Hotaling, district attorney, and William F. Beutler, assistant district attorney, for People.

OSBORN, P. J.-The defendant was indicted by the grand jury of Albany county, at this present term, for the murder of one Erskine Wood, at the town of Coeymans, in July last. The defendant, upon being arraigned, was given, at the request of his counsel, an opportunity before pleading to move to quash the indictment, and his request was granted.

This motion is, therefore, to quash the indictment; also, that the accused may be furnished with the names of the witnesses who appeared before the grand jury, and on which the indictment was obtained, as well as the evidence, or a true copy thereof, as given by such witnesses.

The motion to quash the indictment is based solely on the ground that the wife of the prisoner was called as a witness, and gave important testimony against him, and this without his knowledge or consent.

The district attorney, upon the motion, stated that no