delivered the opinion of the court.
The only point deemed material to notice in this case is the exclusion of John Coleman as a witness for the defendant. The defendant was a free negro and indicted for leasing a house to be kept as a bawdy-house. The witness Coleman co-habited with her as man and wife, and the witness was a slave. The court refused to permit him to testify-
Our statute (Rev. Code ’45, page 1090) declares that “no negro or mulatto, bond or free, shall be a competent witness, except in pleas of *159the State against a negro or mulatto, bond or free, or in civil cases in which negroes or mulattos alone are parties.”
This statute, perhaps, admits of more than one meaning. It may have designed simply to exclude negroes and mulattos from testifying in cases where either party was a white person, leaving their competency in other respects in criminal cases against negroes, and in civil cases where both parties are negroes, to be regulated by the general law of evidence applicable to white persons. Or, the statute may be interpreted to mean that in pleas oí the State against a negro or mulatto and the other cases specified, negroes or mulattos, shall be competent witnesses, without regard to any other exceptions, which by the rules of evidence might have been taken.
I do not consider it material in the present case to determine which is the proper interpretation of the act. Adopting the-first, the only one capable of sustaining the ruling of the criminal court, and we are still unable to see any authority for excluding the witness. A slave is incapable of contracting, and the law does not require any marriages between slaves, or between slaves and free negroes.
We know that marriages de facto exist among this class of persons, but as to the policy of applying the rules of eyidence which by the law regulates the relation of husband and wife to co-habitations of this character, it may be safely left with the legislature. If it should be thought that the same reasons of public policy which prohibits the husband and wife from testifying for or against each other apply with equal force to these de facto marriages, the legislature have it in their power so to enact. Upon such a policy, there would be different opinions. We think it best to leave the matter where the statute law has placed it, believing that little if any inconvenience will result.
In England, the courts have never extended the rule, which excludes a husband and wife from testifying in cases where the one is concerned to any other co-habitation than a legal one. Wells vs. Hatcher, 5 Con. & P. 12; 1 Mood. & Rol. 99. And in North Carolina it has been held that slaves may be witnesses against each other, notwithstanding this relation between them. State vs. Samuell, 2 Der. & But. 177.
Judgment reversed and cause remanded.