Castello v. Castello

• Citation: 41 Ga. 614
• Parties: THOMAS CASTELLO, plaintiff in error. v. SOPHRONIA CASTELLO, defendant in error.
• Decision Date: 31 January 1871
• Court: Supreme Court of Georgia

41 Ga. 614

THOMAS CASTELLO, plaintiff in error. v. SOPHRONIA CASTELLO, defendant in error.

Supreme Court of the State of Georgia

(Atlanta, January Term, 1871.)

DIVORCE — EVIDENCE—PRIVILEGED COMMUNICATION.^* —An action for divorce was brought by the husband against his wife, alleging as a ground for divorce, the willful and continued desertion of the wife for the term of three years:

Held, That the husband was a competent witness on the trial thereof, under the provisions of the 3978th section of the Code; but he could not testify as to any facts derived by him from the confidential relation of husband and wife.

Divorce. Party as Witness. Before Judge Harrell. Stewart Superior Court. October Term, 1870.

In March, 1870, Thomas Castello sued his wife, Sophronia, for a divorce, averring that, three years before, she abused him in the most insulting manner, when he was violently ill and helpless, refused to render him any assistance, abandoned his home, and had remained away ever since. On the trial, after proving the marriage, plaintiff was offered as a witness to prove said averments. The Court held him to be incompetent and there was a verdict for defendant. The rejection of plaintiff as a witness is assigned as error.

Moses & Downing; C. R. Russell, for plaintiff in error.

No appearance for defendant.

*WARNER, J.

The husband was a competent witness, on the trial of the case, under the provisions of the 3798th section of the Code, but could not testify as to any facts derived by him from the confidential relation of husband and wife.

Let the judgment of the Court below be reversed.

*.EVIDENCE—PRIVILEGED COMMUNICATIONS.—There is no error in allowing a wife to be sworn as a witness, and especially none under the caution, that she need not answer any question tending to criminate her husband. Williams v. State, 69 Ga. 31. See also, Castello v. Castello, 41 Ga. 613; Davis v. Weaver, 46 Ga. 626; Porter v. Allen, 54 Ga. 625; Barclay v. Waring, 58 Ga. 87; Goodrum v. State, 60 Ga. 509; Johnson v. State, 61 Ga. 305; Stanford v. Murphy, 63 Ga. 410.