Mitchinson v. Cross

• Decision Date: 31 January 1871
• Citation: 58 Ill. 366,1871 WL 7933
• Parties: HENRY MITCHINSONv.MICHAEL CROSS.
• Court: Illinois Supreme Court

58 Ill. 366

1871 WL 7933 (Ill.)

HENRY MITCHINSON

v.MICHAEL CROSS.

Supreme Court of Illinois.

January Term, 1871.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Ford county.

This was an action for malicious prosecution, brought by Cross against Mitchinson. It appears that Mitchinson had Cross arrested for alleged slanderous words spoken by the latter, imputing to the former adulterous intercourse with one Catharine Cross, formerly Catharine Mitchinson, and to show the absence of probable cause for such prosecution, the plaintiff in this suit attempted to prove the truth of the alleged slanderous words. The plaintiff introduced testimony showing that on one occasion the defendant made an indecent exposure of his person to the said Catharine Mitchinson and her sister. The admission of this evidence against the defendant's objection is one of the errors assigned on the record.

Mr. CHARLES H. WOOD, for the appellant.

Mr. M. D. BROWN, for the appellee. Mr. JUSTICE MCALLISTER delivered the opinion of the Court:

In July, 1867, the appellant, Mitchinson, filed his affidavit in the Ford county Circuit Court, and sued out a capias ad respondendum against appellee, Cross, in an action on the case, for slanderous words alleged to have been uttered and spoken by the latter, imputing to the former adulterous intercourse with one Kate Mitchinson, the niece of appellant. Upon this writ Cross was arrested and, as he says, imprisoned in the county jail for the space of 48 hours. That suit having been dismissed and abandoned by Mitchinson, as it is claimed, Cross brought this action against Mitchinson, alleging that such arrest was malicious and without probable cause. Upon the trial in the court below, the jury found a verdict against appellant for $1100. A motion for new trial was made and overruled, and judgment given upon the verdict. The case was brought here by appeal, and the errors assigned question the ruling of the court in the admission of testimony and giving instructions on the part of appellee.

It appears by the bill of exceptions that appellee, Cross, having, previously to the trial, married the said Kate Mitchinson, offered her as a witness on his behalf to prove that the charges he had made against appellant were true, for the purpose of showing that there was a want of probable cause for issuing the capias for slander. The counsel for appellant objected to her competency. The court overruled the objection, and she testified to the fact of the adulterous intercourse between herself and appellant. Exception was taken to the ruling of the court, and this presents the first question in the case. Was the wife a competent witness for her husband to testify to her criminal relations with appellant before her marriage with appellee? That she was not at common law will not be disputed. The result of the authorities on this subject is well stated by KENT in his Commentaries: “The husband and wife can not be witnesses for or against each other in a civil suit. This is a settled principle of law and equity, and it is founded as well on the interest of the parties being the same, as on public policy.” 2 Kent's Com. 179. This reference is not made so much to show what the rule was, as the foundation of the rule, which is both on the ground of interest and public policy. The first section of this act of 1867 (Gross' Stat. 274,) enacts that: “No person shall be disqualified as a witness in any civil action, suit or proceeding, except as hereinafter stated, by reason of his or her interest in the event thereof as a party, or otherwise.”

It is apparent that this provision of the statute removes the disqualification of witnesses by reason of interest. But does it touch a disqualification based upon reasons of public policy? We think not. The question has arisen in England and in several of the States, under statutes similar to ours, and it has been uniformly held, that a statute removing incompetency, by reason of interest, did not remove it as to husband and...