I concur in the conclusion reached by Mr. Justice BIRD. In my opinion the charge of receiving stolen property was not that of a lesser offense. The statute (3 Comp. Laws 1915, § 15758) provides that such a count may be added when larceny is charged. The verdict must, however, point out the crime of which the defendant is found guilty. People v. Shaw, 57 Mich. 403 (58 Am. Rep. 372). The statute does not contemplate that the same person can be both thief and receiver. In re Franklin,77 Mich. 615. The defendant was charged with distinct offenses in separate counts. A conviction on *Page 630 one worked an acquittal on the others. The rule announced inPeople v. Peck, 147 Mich. 84, where all of the counts charged the same offense, and which were varied merely to meet the proof, does not apply.
I concur in holding that the wife was not a competent witness. The statute (3 Comp. Laws 1915, § 12555) provides that neither the husband nor wife shall be examined as a witness against the other without consent except in certain specified cases, —
"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, but in any action or proceeding instituted by the husband or wife, in consequence of adultery, the husband and wife shall not be competent to testify."
The right of a divorced person to testify in certain cases was considered at length in Patterson v. Hill, 212 Mich. 635. The divorced wife in this case was permitted to testify that she and her husband visited the home of one Hardy on the night in question; that she and Mrs. Hardy went to a show, and on their return she saw some of the articles alleged to have been stolen in the house which were not there when they left, and that she later saw some of these articles in the back of their car when they left for home.
The applicable rule is thus stated in 9 Rawle C. L. p. 490:
"The incapacity of either spouse to testify against the other during the existence of the marriage relation, while not removed by a limited divorce, is affected by an absolute decree to the extent of destroying the incapacity of either spouse to testify on account of interest. It is the general and well-established rule that a husband or wife is incompetent as a witness for or against the other to testify to any information obtained by either during the marriage, and by reason of the existence of that relation; and this rule prevails even after the marriage relation is dissolved by *Page 631 a divorce, or the consent of the opposing party has been given. The prohibition as to such communications and facts rests on the ground of public policy, which endeavors to preserve the marriage relation as one of entire and perfect confidence. When however the conduct or transaction is in no sense traceable to the relation of husband and wife and the confidence it inspires, but in its nature is as likely to have occurred before the public as in private, there are authorities which hold that after the marriage is dissolved by a divorce, they are competent to testify against each other as to such matters. The communications to which neither husband nor wife can testify for or against the other during the marriage or after it has ceased should not be confined to mere statements by one to the other, but should embrace all knowledge upon the part of either obtained by reason of the marriage relation, and which, but for the confidence growing out of it, would not have been known. According to the view taken in many jurisdictions, especially in criminal cases, the competency of a divorced spouse to testify against the other as to facts and circumstances the knowledge of which he or she acquired during the marriage, though not involving confidential communications, is denied."
The rule as above stated meets with my approval, and is supported by abundant authority cited in the foot note. In the cases cited by Mr. Justice BIRD, the marriage relation still existed. *Page 632