People v. Langtree

Sharpstein, J. It does not appear that Mrs. Brandon, who was called as a witness by the defendant, objected to testifying to all that she knew in regard to the burglary for which he was on trial. Nor does it appear that her husband objected to her testifying. His counsel, Mr. Carson, stated that, from the commencement of the trial, he had interposed no objection whatever. On being informed by the court that at that stage he had a right to interfere, if he so elected, Mr. Carson replied: “ I would much prefer not to have Mrs. Brandon examined.” She was a competent witness, and the only question which could possibly arise was whether she could be compelled to testify to any fact which might implicate her husband in the offense with Avhich the defendant was charged. And such evidently Avas the opinion of the court, which held that the witness might “be examined on any matters touching the case” except those “relating to her husband”; but would “not permit her to testify as to any matters in Avhich her husband was implicated in the crime for which the defendant was on trial.” It is of this that the defendant complains. There was a separate information pending in the court, in which the husband of the witness Avas charged with the same burglary for Avhich the defendant was on trial. But said husband was not in any sense a party to the action or proceeding in which his wife was called as a witness. If he had been, his wife could not have been a Avitness for or against him, unless both he and she consented thereto. (Penal Code, § 1322, Code Civ. Proc. § 1881.) And it is claimed by the attorney-general, “that although the husband of the Avitness was not a party to the proceedings then before the court, the [258]fact that he was under information for the same offense, made his connection with those proceedings such that the testimony of his wife, implicating him in the crime, would have been a breach of confidence repugnant to the policy and intention of the law and a manifest violation of its meaning.” In support of this he cites section 1881, Code Civil Procedure, which reads as follows: “A husband cannot be examined for or against his wife, without her consent; nor a wife for or against her husband without his consent; nor can either, during the marriage or afterwards, be without the consent of the other examined as to any communication made by one to the other during the marriage, but this exception does not apply to a civil action or proceeding by one against the other, nor to a criminal action or proceeding for a crime committed by one against the other.”

This is the provision of the Code upon the subject, and it must prevail: “All statutes, laws, and rules heretofore'in force in this State, whether consistent or not with the provisions of this Code, unless expressly continued in force by it, are repealed and abrogated.” (Code Civ. Proc. § 18.)