Gee v. Scott.

abrogated. But it is maintained, by those who insist upon the admissibility of the husband and wife to testify in respect to matters of their general knowledge, that while the husband and wife are precluded from testifying against each other by the common law, upon grounds of public policy, the only ground upon which their testimony in favor of each other was excluded, was that of mutuality or identity of interest. And certainly the language of some of the text-books on the law of evidence, of the highest authority, seems to support this conclusion.

Thus says Starkie: "The husband and wife cannot be witnesses for each other, for their interest is identical; nor against each other, on grounds of public policy." 2 Stark. Ev. 706. And in Buller's N. P. 286, it is stated, "That husband and wife cannot be admitted to be witnesses for each other, because their interest is absolutely the same; nor against each other, because contrary to the legal policy of marriage." See, also, 1 Phill. Ev. 76. And the courts of some of the States having analogous statutes to ours, entertaining this view of the common law, have held the husband and wife rendered by the statute competent to testify for, if not against, each other. Merriam v. Hartford and New Haven R. R. Co., 20 Conn. 354.

But elementary writers of equal authority, and probably the larger number of well-considered cases, put the common-law rule, excluding the testimony of husband and wife in favor of as well as against the other, upon the broader and, as it seems to us, more satisfactory ground of public policy, as well as interest. Says Mr. Greenleaf: "This exclusion is founded partly on the identity of their legal rights and interest, and partly on principles of public policy, which lie at the basis of civil society." 1 Greenl. Ev., § 334. And says Judge KENT: "The husband and wife cannot be witnesses for or against each other. This is a settled principle of law, and is founded as well on the interest of the parties being the same as on public policy." In the case of Davis v. Dinwoody, 4 T. R. 678, when the remarks quoted from Buller's Nisi Prius were relied upon to support the competency of the witness, Lord KENYON said: "Independently of the question of interest, husbands and wives are not admitted as witnesses for or against each other. From their being so nearly connected, they are supposed to have such a bias upon their minds that they are not to be permitted to give evidence either for or against each other." And BULLER, J.,

Gee v. Scott.

adds: "It is now considered as a settled principle, that husband and wife cannot, in any case, be admitted as witnesses for or against each other."

Many other cases might be easily cited, in which it is decided that such testimony is inadmissible at common law, upon the ground of public policy, as well as because of interest; and this principle has been frequently applied by the courts of other States having statutes similar to ours, as will be seen in the following cases, in which it is held that the common-law rule is still in force, and that husband and wife cannot testify the one for the other, notwithstanding their mutuality of interest is no longer a ground for their exclusion. Cram v. Cram, 33 Vt. 15; Mitchinson v. Cross, 58 Ill. 366; Dunlap v. Hearn, 37 Miss. 471, overruling Lockhart v. Luker, 36 id. 68; Lucas v. Brooks, 18 Wall. 436; Kelley v. Proctor, 41 N. H. 139; Breed v. Gove, id. 452; Hasbrouck v. Vandervoort, 5 Seld. 153; Alcock v. Alcock, 12 Eng. L. and Eq. 354; Stapleton v. Crofts, 18 Ad. & Ellis (N. S.), 367; 16 Jur. 408. It may be, the reasons which led to the enactment of the statute modifying the common-law rule, that parties to the record or interested in the issue to be tried are incompetent to testify, are just as applicable to the one ground for the exclusion of such testimony as the other. But if so, this is a matter that addresses itself to the legislature, and not to the judiciary. Until such change is made by the proper department of the government having the power to do this, it is our duty to declare and administer the law as it has been "from the time whereof the memory of man runneth not to the contrary." To do so, we must hold that the court erred in admitting the husband of appellee to testify as a witness in the case. And for this error, the judgment must be reversed. [Omitting remarks not of general interest.]

The judgment is reversed and the cause remanded.

Reversed and remanded.

CASES

IN THE

SUPREME COURT OF APPEALS

OP

VIRGINIA.

ROYALL V. THOMAS.

(28 Gratt. 130.)

Disqualification from holding office by reason of duelling — previous conviction.

Under the Constitution and statutes of Virgina no person who has engaged or shall engage in a duel is allowed to hold office. Held, that one who has been so engaged may be removed from office by quo warranto or an information in the nature of quo warranto, without a previous conviction of the offense in criminal proceedings.*

UO WARRANTO to remove William L. Royall from the office of notary public. The opinion states the case.

Royall, for appellant.

The Attorney-General, for appellee.

STAPLES, J. The Commonwealth's attorney for the county of Henrico sued out a writ of quo warranto against William L. Royall, alleging that the latter was disqualified to hold office under the government of Virginia by reason of his having been engaged as a Becond in a duel fought in that county, in the year 1873. The

• Bee Coinmonwealth v. Walter (83 Penn. 8t. 105), 24 Am. Rep. 154.

Royall v. Thomas.

defendant did not in express terms deny the charge, but he averred that he had never been convicted of being engaged in a duel. To this answer the Commonwealth demurred; and the demurrer was sustained by the Circuit Court. The defendant not desiring to put in any further answer, judgment was rendered against him of a motion from his office. To that judgment he obtained a writ of error from one of the judges of this court. The ground taken by the defendant is, that the provision in the Virginia Constitution upon the subject of duelling is not self-executing, and that a conviction founded upon indictment and trial, according to the forms of the criminal law, is necessary before the disqualification for office attaches under the government of the State.

The principal authority relied on in support of this position is the case of the Commonwealth v. Jones, decided by the Supreme Court of Kentucky, reported in 10 Bush, 725.

It was there held that the clause in the Kentucky Constitution imposing the disqualification for office for the offense of duelling is not self-executing, except so far as it prevents those who cannot or will not take the requisite oath from entering upon office.

zen willing, however, to take such oath cannot be proceeded against for usurpation of such office until he has been first indicted, tried and convicted of the disqualifying offense. This case seems to be a strong authority for the defendant; but it will be found on examination, that much of the reasoning of the courts turns upon the peculiar phraseology of the Kentucky Constitution, in which it is declared that the offender "shall be deprived of the right to hold any office, post or trust under the authority of the State. The court agreed, that if instead of the words, shall be deprived,' the phrase shall not be eligible' had been used, some of the difficulties attending the argument to show the provision is self-executing would have been obviated."

In the case of Cochran v. Jones, involving the same question, "the board, for the determination of contested elections," arrived at a very different conclusion upon the same clause of the Kentucky Constitution, holding that the political disability resulted from the commission of the offense, and is in nowise dependent upon a previous criminal conviction. This board consists of the governor of the State, the secretary of the State, the attorneygeneral, the State treasurer and the auditor-general. In the previous case of Morgan v. Vance, 4 Bush, 330, the Supreme Court of that

Royall v. Thomas.

State held, "so far as the Constitution prescribes disqualification upon acts and that upon judgment of conviction, the Constitution, as the supreme law of the land, execute itself without any extraneous aid by way of legislation, nor can its requirements be defeated." It will thus be seen that even in Kentucky there is such conflict of opinion in respect to the true interpretation of the constitutional provision in question as deprives the decision relied on by the defendant of the weight of being considered even persuasive authority. The provision in the Virginia Constitution is as follows: "No person who, while a citizen of this State, has since the adoption. of this Constitution fought a duel with a deadly weapon, sent or accepted a challenge to fight a duel with a deadly weapon, either within or beyond the boundaries of this State, or knowingly conveyed a challenge, or aided or assisted in any manner in fighting a duel, shall be allowed to vote or hold any office of honor, profit, or trust, under this Constitution." It has been made a question whether this provision is prospective in its operation. There is, however, no solid ground for controversy on this point. The words might perhaps have been more aptly chosen, but they clearly mean to declare, that any person who after the adoption of the Constitution engaged in a duel as principal or second, should be subject to the disability in that section mentioned. However this may be, the legislature at its session of 1869-70 passed an act carrying out the provision of the Constitution, substantially re-enacting that provision, giving it a prospective operation, and emphatically declaring that no person offending against the act "shall be capable of being elected, or appointed to, or of holding any office of honor or profit under the Commonwealth." It will be perceived that the language, both of our Constitution and of our statutes, is very different from that of the Kentucky Constitution. In our case, if the constitutional provision required any aid from extraneous legislation, it has been given by the statute already cited. It is also perfectly apparent that the framers of the Constitution, and of the statute, designed that the disability to hold office should attach upon the commission of the offense, and not upon judgment of conviction. In the clause next preceding the one already quoted, the Constitution, in enumerating the persons disqualified by reason of certain offenses, specifies "persons convicted of bribery in any election, embezzlement of public funds, treason or felony." It is also provided elsewhere that persons convicted of VOL. XXVI-43