The bill of exceptions, in this case, presents the question, whether, in a criminal prosecution, the wife of the accused may be admitted as a witness, to testify in his behalf?
Before the great innovation upon the law of evidence was made, in this state, by the statute of 1848, it is conceded, that, by the common law, and our own practice, the wife could not testify for her husband, either in civil, or criminal cases, where he could not testify for himself. This was but the necessary result of the salutary common law doctrine, *20that the husband and wife were.but one person, or party; a doctrine, although somewhat obscured in modern times, yet not entirely repudiated, as a legal maxim. The wife was considered as having a legal identity with her husband, in most respects, where such a principle would not lead to practical injustice, as it might affect her person or estate. Chiefly, on the ground of this intimate union, or identity, it was, that the husband and the wife were excluded from testifying, on behalf of each other. 1 Ph. Ev., 77. 1 Greenl. Ev., 384. 1 Sw. Dig., 18.
The 141st section of the revised statute for the regulation of civil actions, passed in 1848, enacted that “ no person should be disqualified, as a witness, in any proceeding at law, or equity, by reason of his interest in the event of the same, as a party, or otherwise.” This was adjudged to extend as well to proceedings in criminal, as in civil cases; and accused parties on trial, as well as their wives, were admitted to testify for each other. This, upon experiment, was found to result rather to.the injury of, than to afford a privilege to, persons charged with crime. And, therefore, by the statute of 1849, so much of the foregoing section, as authorized a party to any criminal proceeding to testify regarding the same, was repealed.
We suppose, the effect of this repeal is, to restore the common law, in its operation upon the admissibility of parties, as witnesses, in criminal prosecutions, as it was previous to the statute of 1848, in all respects. And, of course, husbands and wives sustain the same relation to each other, now as before, with the same capacities and incapacities, as interested parties.
We are of opinion, therefore, that there is no error in the judgment of the superior court.
In this opinion the other judges concurred, except Stokes, J., who tried the cause in the court below, and was disqualified.
Judgment affirmed.