Opinion
(Filed 17 June, 1902.)
Evidence — Fornication and Adultery — Husband and Wife — Witnesses — The Code, Secs. 588, 589, 590, 1353, 1354.
Where a man and a woman are indicted for fornication and adultery, and a nol. pros. is entered as to the feme defendant, the husband of the woman is a competent witness to show adultery between the defendants committed before the marriage of the woman and the witness.
INDICTMENT against Elam Wiseman and Hester Blalock, heard by Councill, J., and a jury, at September Term, 1901, of MITCHELL. From a verdict of guilty as to Wiseman and judgment thereon, he appealed.
Robert D. Gilmer, Attorney-General, for the State.
S. J. Erwin for defendant.
DOUGLAS, J., dissenting.
The competency of witnesses is a matter subject to regulation or change by statute. "Public policy" is not a higher law than the express enactment of the law-making power. When the (727) latter is silent, the courts ex necessitate declare what is public policy by analogy to other statutes or reference to the right reason of things. But when the representatives of the people declare what is public policy by the terms of a statute, which the Constitution does not prohibit the Legislature from enacting, there can be no public policy which the courts can hold in derogation of the statutory enactment.
What is the "public policy" as to the competency of witnesses has been explicitly declared, with much care in stating the exceptions to the general rule, by the General Assembly. It will be found in The Code, sec. 589, which removes the common-law disqualification of interest, subject to exceptions stated in section 590. And as to the disqualifications formerly existing by reason of the marriage relation, section 588 makes the husband and wife "in any suit, action or proceeding in any court . . . competent and compellable to give evidence, as any other witness," subject only to these exceptions: neither is competent or compellable "to give evidence for or against the other in any criminal action or proceeding (except to prove the fact of marriage in case of bigamy), or in any action or proceeding for divorce on account of adultery (except to prove the fact of marriage), or in any action or proceeding for or on account of criminal conversation. No husband or wife shall be compellable to disclose any confidential communication made one to the other during their marriage." Even the above exceptions are reduced by the subsequent section, Code 1353, which provides: "The husband or wife of the defendant in all criminal actions or proceedings shall be a competent witness for the defendant," and section 1354, which provides that neither husband nor wife shall be competent or compellable to give evidence against the other, subject to right of cross-examination (728) (section 1353) when a witness for the other, and subject to the further exception that the wife is competent against the husband to prove an assault and battery upon her, or abandonment.
The lawmaking power having declared the public policy that all witnesses are competent, subject only to the above-recited exceptions, the courts can not narrow the general clause by putting in other exceptions. That would be pro tanto to repeal the statute and declare a public policy different from and in antagonism to that declared by the lawmaking power. Here, a man is on trial alone for fornication and adultery. Another man is offered as a witness against him. He is competent under the express terms of the statute, and indeed was so independently of and before the statute. That the witness's wife was originally a party defendant has no bearing, for, having been nol. prossed., it is as if she had never been a party. The fact as to which the witness testified occurred before the marriage, and was as to a matter which the witness saw himself. It did not come within the exception, "a confidential communication made by one to the other during their marriage." Nor is the evidence "for or against the other," since the wife is not a party to this action.
In S. v. McDowell, 101 N.C. 734, it is said that under section 588, a wife (or husband) is a competent witness to testify in "any suit or proceeding except as stated in that section." To sustain a supposed public policy that would disqualify the witness, it would be necessary not only to disregard the statute, but to overrule our own decisions. Whether the provisions of the statute are wise or harmful, or might not be bettered, are not matters permitted to the courts. The judge below had no discretion but to follow the law as written, and, indeed, if the supposed public policy set up by the defendant can be sustained by any decision rendered before the enactment of our present statutes, it must be remembered that those statutes were enacted to remove all the disabilities previously existing, except as therein stated. (729)
No error.