Commonwealth v. Sapp

• Citation: 90 Ky. 580,14 S.W. 834
• Parties: COMMONWEALTH v. SAPP.
• Decision Date: 25 October 1890
• Court: Court of Appeals of Kentucky

14 S.W. 834

90 Ky. 580

COMMONWEALTH v. SAPP.

Court of Appeals of Kentucky.

October 25, 1890

Appeal from circuit court, Marion county.

"To be officially reported."

P. W Hardin, Atty. Gen., and F. Shuck, for the Commonwealth.

HOLT C.J.

Upon the trial of William Sapp upon the charge of attempting to poison his wife, the state offered her as a witness against him, avowing by its attorney that it would prove by her she had seen the accused sprinkle a substance upon a piece of water-melon intended for her, and that the portion of it produced at the examining trial, and then shown to contain arsenic, was a part of the piece prepared for her, and was when so produced, in the same condition as when she got it from him. It is claimed the attempt was made in August, 1888. Afterwards, and before his trial, they were divorced absolutely. The court refused to permit her to testify holding that she could not be a witness for any purpose; and whether this is so is the main question now presented. It is a general rule of the common law, based upon public policy and because of identity of interest, that neither a husband or wife can testify for or against the other; and some authorities hold that, where this relation has once existed the one is inadmissible for or against the other, even after the relation has ceased, as to any and all matters that occurred during its existence. They follow Lord ALVANLEY, who said, in the early case of Monroe v. Twisleton, Peake, Ad. Cas. 219, that the divorced wife is a competent witness to proved any fact arising after the divorce, but not to prove anything which happened during coverture. Thus, Mr. Wharton says: "If a woman be divorced a vinculo matrimonii, she cannot prove a contract, or anything else, which happened during the coverture. Any fact arising after the divorce, she may prove." 1 Whart. Crim. Law, § 774. It is perhaps questionable whether some of the writers to this effect do not mean that the divorced wife cannot testify as to any matter occurring during coverture, if her knowledge as to it arose by reason of the marital relation. It was held, in State v. Phelps, 2 Tyler, 374, that a woman, although divorced absolutely, is not a competent witness upon an indictment against her former husband for a crime committed during the coverture; but the court so announced without any argument in the opinion of the question. Cases may, however be found where courts of high authority have held that a widow may testify against the administrator of her husband as to any facts which she did not learn from the latter, or which did not come to her knowledge by reason of the marital relation, although relating to the transactions of her husband. 1 Greenl. Ev. § 338; Babcock v. Booth, 2 Hill, 181. In the case last cited the court said: "The policy of the law only excludes her when her answer will be a violation of the confidence which existed between the husband and wife while the marriage relation continued;" and in Ratcliffe v. Wales, 1 Hill, 63, which was an action for crim. con. with the plaintiff's wife, it was held that while a divorced wife is generally incompetent to testify against the husband, as to facts occurring during the marriage, yet she was competent to prove the charge for him, although the act occurred during the existence of the marriage. We fail to see any reason for a distinction whether she be called as a witness for or against him. It was held by this court in Storms v. Storms, 3 Bush, 77, that the testimony of a husband, after his wife has been divorced from him, is competent against her if it divulges no communication between them during coverture. In English's Adm'r v. Cropper, 8 Bush, 292, the testimony of the widow of the intestate was offered by his administrator to prove facts which came to her knowledge during the coverture, but not by reason of her confidential relation as wife. It was urged that our then existing law (1871) provided that husband and wife should not testify for or against each other, and that, construing, it by the reasons of public policy, which, before its adoption, disqualified them from so testifying, it should be held to exclude them after the dissolution of the marriage by divorce, or the death of one of them; but this court said: "Neither the literal import of the language of the Code cited, nor any principle of policy or propriety will exclude a surviving wife or husband from testifying to facts known by the witness from other means of information than such as result from the marriage relation, where, as in this case, the witness is not otherwise incompetent, although the testimony may relate to transactions of the deceased husband or wife." Our statute, adopted in 1872, and which, in substance, so far as it bears upon the question we are now considering, is again found in section 606 of the Civil Code, appears to be declaratory of these decisions of this court. It says: "Neither husband nor wife shall be competent for or against each other, or concerning any communication made by one...