Gibson v. Commonwealth , 1878 Pa. LEXIS 156 ( 1878 )

Mr. Justice Gordon

delivered the opinion of the court,

The defendant, who was indicted for forgery, was permitted, under the provisions of the Act of April 3d 1872, as extended by the Act of 24th of March 1877, to testify in his own behalf, but his wife, being offered for the same purpose, was adjudged incompetent. In this we can discover no error. It is certain that, before the passage of the above-named acts, neither the defendant nor his wife could have been heard to testify in his defence, and that either is qualified so to dp depends upon the terms of the statute.

“ The person so charged shall, at his own request, but not otherwise, be deemed a competent witness,” is the language of the enactment, and certainly this does not embrace the wife. In order to meet the demand of the plaintiff in error, we are required to interpolate the words, “and his wife” so as to make the act read: “the person so charged and his wife shall, at his own request,” &c. We cannot, however, assent to a proposition of this kind, for the reason that, in so doing, we must pass the bounds of judicial power and trespass upon the domain of legislation.

The language used is not doubtful; it is as plain as it is possible to make it, and contains nothing that is in any degree ambiguous. If, however, we found something therein of ambiguity, we would still be constrained to resolve the question against the defendant, for we must, if we would follow the well and long established rule, construe the statute under consideration with reference to the common law, and provisions in derogation of the common law are to be held strictly.

The judgment is affirmed.

Chief Justice Agnew filed a dissenting opinion.