Com. v. Barker

• Citation: 70 N.E. 203,185 Mass. 324
• Parties: COMMONWEALTH v. BARKER.
• Decision Date: 31 March 1904
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

185 Mass. 324

70 N.E. 203

COMMONWEALTH v. BARKER.

Supreme Judicial Court of Massachusetts, Suffolk.

March 31, 1904

COUNSEL

John

D. McLaughlin, Asst. Dist. Atty., for the Commonwealth.

P. H Kelley, for defendant.

OPINION

MORTON J.

This is an indictment against the defendant for polygamy. There was a verdict for the commonwealth, and the case is here on the defendant's exceptions. The person alleged to be the lawful wife of the defendant was called as a witness against him, and without the consent and against the objection of the defendant was allowed to testify to material facts tending to prove his guilt. The only question is whether she should have been allowed to so testify without his consent. At common law a married woman could not testify in such a case against her husband. Kelly v. Drew, 12 Allen, 107, 90 Am. Dec 138. But by various statutes, which were consolidated in Gen St. 1860, c. 131, §§ 13-16, the common law was greatly changed. It was changed still more by St. 1870, p. 301, c 393, which was substantially re-enacted in Pub. St. 1882, c. 169, § 18 et seq., and in Rev. Laws, c. 175, § 20 et seq. It is now provided that 'any person of sufficient understanding, although a party, may testify in any proceeding, civil or criminal, in court, or before a person who has authority to receive evidence, except as follows: First, neither husband nor wife shall testify as to private conversations with each other. Second, neither husband nor wife shall be compelled to testify in the trial of an indictment, complaint or other criminal proceeding against each other.' Rev. Laws, c. 175, § 20. The effect of these provisions is to render every person competent to testify, except that husband and wife cannot testify to private conversations, or be compelled to testify in criminal proceedings against each other. There is nothing which prevents a husband or wife from testifying against the other in criminal proceedings if the one testifying is willing to do so. The competency of the one testifying in such a case does not depend on the consent of the other. The only limitation is that the husband or the wife cannot be compelled to testify. The case of Kelly v. Drew, supra, relied on by the defendant, arose under the General Statutes, and consequently is not applicable to the case before us. The statutes cited from other states differ materially from our own, and do not affect its construction.

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