1. oBimiu-Ai. ' iulbiuui'aua51 mfe" I. Amelia M. Houston, wife of the defendant, was examined and testified before the grand jury. It is insisted by the defendant that that fact rendered the indictment void, and that the verdict cannot be allowed to stand. The wife cannot be a witness against her husband except in a criminal prosecution for a crime committed against her, and in a civil action brought by one against the other, but she may be a witness for him in all cases. Code, § 3641. When the grand jury have reason to believe that evidence within its reach will explain away the charge it may order such evidence to be produced. Code, § 4276.
A witness, then, called before the grand jury is not necessarily called against the defendant. It might be the defendant’s privilege that his wife should be called. If, however, where a defendant’s wife is called, and the facts of which she has knowledge are unfavorable to the husband, it 'would be proper for her to object to testifying, and we think she could not be compelled to testify against her objection. If she testified, and her testimony was unfavorable to her husband, so that it appeared that the indictment was found in whole or in part upon her testimony, possibly the indictment might be quashed upon that ground. But the defendant should judge whether her testimony was favorable or unfavorable before proceeding to trial, and move to quash if he thought there was ground for it. We think it too late to raise an objection of this kind after conviction.
II. Two witnesses were examined whose names were not on the indictment. The admission of their testimony is assigned as error. No objection, however, was made to their testimony at the time, and such objection cannot be raised for the first time after conviction. Ray v. The State, 1 G. Greene, 316.
The evidence tends to show that the relations between the defendant and Kelly had been very unfriendly, and that on one occasion the defendant quarreled with him and knocked him'down. It tends to show that the defendant loved his wife, and was'in a great state of excitement on account of the supposed intimacy, and had threatened to commit suicide. We think, however, that there is little that can be said in extenuation of the killing of Kelly. Defendant had previously threatened his life. On the night of the murder he went to Kelly’s house armed. There is no pretense that he armed himself for self-protection. We think his purposes were
Affirmed.