(concurring). I concur in the result reached by the majority; but I am writing a separate opinion because I believe this Court should *286address the applicability of the spousal privilege in this action. If this Court fails to address this issue we are, in effect, allowing the parties to change the law as it applies to the case by agreeing that a statute applies to the case when in fact it does not.
MCL 600.2162; MSA 27A.2162 provides, in relevant part:
"A husband shall not be examined as a witness for or against his wife without her consent; nor a wife for or against her husband without his consent, * * * nor shall either, during the marriage or afterwards, without the consent of both, be examined as to any communication made by one to the other during the marriage.”
The latter aspect of the spousal privilege, relating to marital communications, is clearly inapplicable on these facts because Jane Parker would have testified as to the activities of her husband, not any communications from him. The former privilege prevents Jane Parker from testifying against her husband. Since Patrick Parker was not a defendant in this action (although he was a separately charged accomplice), Jane Parker would not be testifying against her husband. Her husband would be able to assert the spousal privilege if the prosecution attempted to use her testimony against him in the separate trial. See Riggs v Whitaker, 130 Mich 327; 89 NW 954 (1902).
Thus, I would hold that the trial court erred in excluding Jane Parker’s testimony because the spousal privilege is inapplicable to this case. However, I agree with the majority that the exclusion of her testimony was harmless beyond a reasonable doubt because the proffered testimony was cumulative.