Kelly v. Drew , 94 Mass. 107 ( 1866 )

Gray, J.

The first question raised by this bill of exceptions is whether the superior court rightly refused to admit the plaintiff’s daughter as a witness.

Her testimony, so far as it went to show that the defendant had married and cohabited with the witness while she had another husband living, tended to prove that the defendant had been guilty of adultery. The law, upon considerations of public policy, and of preserving the harmony of the marriage relation, independent of any interest of parties or witnesses, will not allow a wife in any case, civil or criminal, to be a witness against her husband, or to testify to any fact which directly tends to show him to have been guilty of a crime, other than an injury to her person, in which case she is admitted to support an indictment against him, for the sake of bringing him to justice. Fitch v. Hill, 11 Mass. 288. Commonwealth v. Murphy, 4 Allen, 491. Commonwealth v. Sparks, 7 Allen, 535. Stein v. Bowman, 13 Pet. 221, 222. This incompetency of the wife to be a witness against her husband is not affected by the recent statutes; for the general provisions, removing disqualification by reason of interest and enabling parties to testify, do not affect this exclusion on grounds of public policy; and the provisions expressly authorizing husbands or wives to testify are limited to cases in which the wife is a party or one of the parties. Gen. Sts. c. 131, §§ 13, 14, 16. Burlen v. Shnnon, 14 Gray, 437,438. Barber v. Goddard, 9 Gray, 72.

But when a husband is proved to have married a second wife, living the first, though the first wife is not a competent witness against him, the second is, not being in law his wife. 1 Hale P. C. 693. Gilb. Ev. (3d ed.) 137. Bull. N. P. 287. 1 East P. C. 469. And upon like reason a woman, duly proved to have been previously married to a man still living and still her husband, is doubtless a competent witness against a second husband. The practice, both in England and in this country, as stated in some modern treatises, has been to prove the earlier marriage by independent evidence; and there are respectable judicial opinions that it cannot be proved by the testimony of the wife herself. 1 Greenl. Ev. § 339. Best on Ev. § 173. Peat’s case, 2 Lewin C. C. 288. Rose v. Niles, Abbott’s Adm. R. 411. The Queen v. Madden, 14 Upper Canada Q,. B. 588. But the earlier books already cited suggest no such limit of the means of proving the earlier marriage; and there are decisions of at least equal authority in favor of admitting a woman to testify against one appearing to be her husband, upon its being shown by her own examination that she is not his lawful wife. Batthews v. Galindo, 1 Moore & P. 565; S. C. 4 Bing. 610. Wells v. Fletcher, 5 C. & P. 12. Regina v. Young, 5 Cox Crim. Cas. 296. If the case required a determination of this question, it would be necessary to examine and weigh these conflicting decisions and the reasons on which they are founded. But this case may be decided without entering upon such an investigation.

The state of facts offered to be shown by the witness was only that more than twenty years ago she was married to another man, and lived with him for a few months, and about four /ears afterwards married the defendant without having heard of her first husband’s death. No evidence was offered that the first husband had been heard from for twenty years, or that he had not died or been divorced ■ from her before her second marriage. Under the circumstances of this case, the presumption of the wife’s innocence in marrying again-might well overcome any presumption that a man not heard from for four years before the second marriage, or for sixteen years afterwards, was alive and her lawful husband when she married the second time, The King v. Twyning, 2 B. & Ald. 386. Lapsley v. Grierson, 1 H, L. Cas. 505. Loring v. Steineman, 1 Met. 211. Greensborough v. Underhill, 12 Verm. 604. The judge presiding at the trial could not admit her as a witness against the defendant, without being satisfied that she was not his lawful wife; and as no sufficient evidence was offered that at the time of marrying him she had a former husband, she was rightly excluded from testifying.

The instructions given to the jury were well adapted to the facts disclosed by the evidence, and are stated in the bill of exceptions with such fulness, precision and clearness, as to require no further demonstration of their accuracy.

Exceptions overruled.