Cas. 1037, and notes; Ex parte Tillinghast, | der of the court required the wife to testify 4 Pet. 108, 7 L. Ed. 798; Ex parte Fisk, 113 is not accused of crime upon the person of U. S. 713, 5 Sup. Ct. 724, 28 L. Ed. 1117.

the wife. The refusal negatives waiver on the part of the wife, and a waiver on the part of the husband is not shown even if, in view of the interest of the public in the exclusion

band, the privilege can be waived by either or both parties.

At common law all persons were, in general, disqualified to testify in judicial proceedings in which they were parties or were interested, largely upon the theory that interested testimony is, in general, not reliable and that temptation to perjury should be avoided; therefore, as a matter of public policy, parties, to the action and those in

Where a person has been committed to the custody of an officer for contempt of court in violating an order of court, such person may by habeas corpus secure a determination of testimony by the wife against the husas to the jurisdiction of the court in ordering the commitment and also as to whether the conduct charged constituted delinquency or misbehavior. If it be adjudged that the court had no jurisdiction, or that the conduct was not such as may constitute a contempt of court, or that it was the exercise of a legal right, and that the order of commitment is not merely erroneous or irregular, but is illegal or made without authority of law, the person will be entitled to a dis-terested therein were not permitted to testify charge from custody in order to make effec- as witnesses in cases. And the husband or tive the judicial determination of innocence wife was likewise disqualified to testify in and to preserve the constitutional right of all cases where the other consort was a party or persons not to be deprived of liberty with- interested, chiefly perhaps on the ground of out due process of law. See Ex parte Ed. unity of interest; the husband and wife beSenior, Jr., 37 Fla. 1, 19 South. 652, 32 Ling in law regarded as one person. Whether R. A. 133; Bronk v. State, 43 Fla. 461, 31 South. 248, 99 Am. St. Rep. 119. See, also: Jackson v. State, 33 Fla. 620, 15 South. 250; State v. Lewis, 55 Fla. 570, 46 South. 630; Hardee v. Brown, 56 Fla. 377, 47 South. 834;

Ex parte Knight, 52 Fla. 144, 41 South. 786;
Ex parte Fisk, 113 U. S. 713, 5 Sup. Ct. 724,

28 L. Ed. 1117.

As shown by the record, the purpose of the order of the court which the petitioner declined to obey was not to require her to become a witness in the case, or to testify for her husband as to matters not involving marital confidence, or to testify against her husband on a charge that he had committed a crime upon her person. The purpose of the order of the court was to compel the petitioner to testify against her husband on an accusation that he has committed a crime upon another person. There is no contention that the wife may not be compelled to testify for or against her husband when the testimony does not incriminate him.

The petitioner refused to testify against her husband before the grand jury upon the ground that it was her right to so refuse. Even if under the statutes of this state she is not disqualified to testify in the case, and is therefore a competent witness to give testimony that is not incompetent or privileged, yet if it is her privilege to refuse to testify against her husband when he is charged with a crime upon another person, and it does not appear that he has waived the privilege, such refusal is but an assertion of the privilege which is her right; and, if it does not appear that the circumstances of this case are such that the law renders her testimony criminating her husband competent and not privileged, the order committing the petitioner for refusing to testify against her husband is without authority of law, and the petitioner is entitled to be dis

husband and wife are civilly one or not, each has a substantial interest in common with

the other.

sons as witnesses where they are parties or The disqualifications of all perwhere the other spouse is a party or interare interested, and of husband and wife ested, have been modified by statutes. sections 1502, 1505, 3919, Gen. St. 1906.

See

See Kent's Com.

In addition to the disqualification of the husband and wife to testify because of interest or unity of interest, the testimony of husband and wife criminating each other was by the common law privileged as being primarily detrimental to the parties; and such testimony was also excluded as incompetent since it was regarded as detrimental to the public welfare because it would impair marital unity and harmony and because of the natural repugnance to unseemly conflicts between husband and wife. 179; Wigmore's Ev. 2227 et seq. That a privilege existed at common law as to criminating consort testimony, see: 1 Brownlow & Goldesborough's, 47; Pedley v. Wellesley, 3 C. & P. 557; Wigmore's Ev. § 2227 et seq.; State v. Kodat, 158 Mo. 125, 59 S. W. 73, 51 L. R. A. 509, 81 Am. St. Rep. 292; Wharton's Cr. Ev. §§ 396, 402, 463; State v. Briggs, 9 R. I. 361, 11 Am. Rep. 270; 8 Taylor's Ev. §§ 1369, 1453; Rex v. All Saints, 6 M. & S. 194; State v. Woodrow, 58 W. Va. 527, 52 S. E. 545, 2 L. R. A. (N. S.) 862, and notes, 112 Am. St. Rep. 1001, 6 Am. & Eng. Ann. Cas. 180; Wharton's Ev. § 425; Cartwright v. Green, 8 Ves. Jr. 405a; Phillips on Ev. (4th Am. Ed.) p. 80.

In 1 Blackstone's Commentaries, 443, in stating the common law of England as to the relation of husband and wife, it is said: "In trials of any sort, they are not allowed to be evidence for or against each other; partly because it is impossible their testi

wife directly incriminating the other consort or disclosing marital confidences, though the same character of testimony was also excluded as incompetent at common law.

because of the union of the person. And as privileged testimony of the husband or therefore, if they were admitted to be witnesses for each other, they would contradict one maxim of the law, nemo in propria causa testis esse debit; and, if against each other, they would contradict another maxim, nemo tenetur seipsum accusare. But where the offense is directly against the person of the wife, this rule has usually been dispensed with."

In the case of Mercer v. State, 40 Fla. 216, 24 South. 154, 74 Am. St. Rep. 135, it was held the statutes that are now sections 1502 and 3919, Gen. St. 1906, "removed the incompetency as witnesses of husband and wife The principle of the maxim above given because of the interest of either in both civil that "no man shall be compelled to criminate and criminal cases, do not have the effect himself" is also expressed in the statement of empowering either of them, when they beof the law that "a man is competent to prove come witnesses to give illegal or incompetent his own crime, though not compellable." Un- testimony by detailing or exposing those condal v. Walton, 14 M. & W. 255. Upon the fidential transactions or communications that theory that at the common law the husband have passed between them in consequence of and wife are civilly one, and that in the in- their marriage relation, that the law priviterest of the general public welfare the ex-leges and shields from exposure by either of emption from self-accusation could be ex- the parties to the communication; and this tended to the wife as being in law one with to preserve a wholesome public policy." This the husband, the provision of section 12 of decision is in line with the authorities and is the Declaration of Rights in the state Con- correct in principle. stitution, that "no person shall be If the statutes of this state removing the compelled in any criminal case to be a wit- disqualifications of husband or wife to testiness against herself," may be regarded as at fy in cases where the other spouse is a party least a declaration of a public policy that or is interested does not remove the commonwould preserve the privilege of not testify-law privilege as to confidential communicaing against each other in criminal prosecu- tions between husband and wife that exist tions accorded to the husband and wife at common law.

Where the law permits testimony to be withheld because it is detrimental to the public welfare, the testimony is excluded as being incompetent. Where the law permits testimony to be withheld because it is detrimental to the parties, the testimony is exempted as being privileged. Interested testimony is not ordinarily detrimental to the parties to an action; but, as it gives opportunity for perjury, the common law regarded it as detrimental to the public welfare and excluded it as being incompetent. Testimony of the husband or wife criminating the other consort or divulging marital confidences is directly detrimental to the parties primarily, and the common law exempted it as being privileged.

The common law also regarded the testimony of husband or wife criminating the other consort or revealing marital confidences as detrimental to the public welfare, and excluded such testimony as being incompetent. See 1 Greenleaf on Ev. § 340.

To abrogate a rule excluding testimony because incompetent does not affect a rule exempting the same testimony because it is privileged, in the absence of such an intent expressed or implied. The purpose of the statutes modifying the common-law rules as to testimony of parties to a suit and those interested in the event of the suit and the husband or wife of such parties or persons is to remove the rule excluding, as being incompetent, testimony that was regarded as detrimental to the public welfare; and there is no expressed or implied purpose to abro

only because of the marital relation, it is not perceived how they remove other common-law privileges that exist solely because of the marriage relation and are also founded upon a sound public policy. If at common law there was a privilege accorded to the husband and wife of not being forced to directly accuse the other consort of crime, that privilege related to the testimony to be given and was for the benefit of the accused and of the marital relation in the interest of the general welfare. It is true testimony against the consort accused of crime may not be confined to confidential communications between the husband and wife; but, if there is a basis in public welfare for the sacredness of confidential communications between husband and wife, there is a basis of equal, if not superior, merit for the privilege that each consort had at common law of not being forced to accuse the other spouse of a criminal offense.

Experience has shown that, for practical purposes in the administration of justice, the truthfulness of interested testimony may in general be sufficiently tested by cross-examination and impeachment of witnesses; and the disqualification of persons to testify in cases because of being parties, or because of interest therein, or because the husband or wire is a party or interested therein, have been removed or modified by statutes in this state. Neither cross-examination nor impeachment nor any other expedient now known can avoid the evil consequences of a husband or wife testifying against the other consort in criminal cases, and, whether the rule is called a disqualification or a privilege,

change it. The modifying statutes specifical- | cess of Law, 180 et seq., and authorities cited. iy refer to the disqualification and exclusion Campbell et al. v. Skinner Mfg. Co., 53 Fla. of persons as witnesses because of interest, 632, 43 South. 874. and, though the exclusion as witnesses is modified, the language used is not broad enough to abrogate the privilege of the testimony of husband or wife against the other spouse allowed by law as a privilege against self-accusation and exposure of marital confidences or to prevent the exclusion of such testimony as being inadmissible on grounds affecting, not interest or mere public policy, but the public welfare.

Experience has demonstrated the wisdom of the rules respecting the testimony of husband and wife against each other that are so firmly embedded in and safely guarded by that great protector of human rights, known as the English common law, which is the law of this state, except where it has been expressly or impliedly abrogated or modified by the lawmaking power. Section 59, Gen. St. 1906.

The statutes of this state provide that: "No person in any court or before any officer acting judicially, shall be excluded from testifying as a witness by reason of his inter

or because he is a party thereto"-with an exception not pertinent here. Section 1505 (Acts 1874).

It is stated that the privilege against adverse testimony of the consort antedated the rule excluding such adverse testimony in the ancient common law. If the rule as to incompetency and absolute exclusion of ad-est in the event of the action or proceeding, verse marital testimony had the effect to supersede and render somewhat obsolete the rule of marital privilege of exemption from consort accusation, yet, if the rule as to incompetency and exclusion is modified by statute, the privilege remains, unless a contrary legislative intent clearly appears. Wigmore's Ev. § 2245.

"In the trial of civil actions in this state neither the husband nor the wife shall be excluded as witnesses where either the said husband or wife is an interested party to the suit pending." Section 1502 (Act of 1891).

"The provisions of law relative to the competency of witnesses and evidence in civil cases shall obtain also in criminal cases, except in cases otherwise provided by law." Section 3919, Gen. St. 1906.

If it be conceded that the above statutes completely remove all disqualifications of husband or wife as witnesses, thereby making them competent to testify, the statutes do not remove the privilege or authorize the giving of incompetent testimony as recognized by the rules of the common law. Mercer v. State, supra. It would seem, however, that the above statutes only remove such disquali

The testimony of husband and wife against each other is competent and not privileged when necessary to protect one from the other's wrongdoing, or when justice demands it. See: Lord Audley Trial, 3 St. Tr. 401, 414; Storrs v. Storrs, 23 Fla. 274, text 277, 2 South. 368; McGill v. McGill, 19 Fla. 341; Bassett v. United States, 137 U. S. 496, 11 Sup. Ct. 165, 34 L. Ed. 762; 1 Greenl. on Ev. 343; Wigmore on Ev. § 2239; Schouler on Husband & Wife, § 84; Turner v. State, 60 Miss. 351, 45 Am. Rep. 412; Johnson v. State, 94 Ala. 53, 10 South. 427; State v. Davidson, 77 N. C. 522; Whipp v. State, 34 Ohio St. 87, 32 Am. Rep. 359; State v. Har-fications as depended upon interest; and, ris, 5 Pennewill (Del.) 145, 58 Atl. 1042; Bishop's New Crim. Proc. § 1153;1 2 L. R. A. (N. S.) 862, and notes; Chamberlayne's Best on Ev. §§ 175, 176;2 2 Am. & Eng. Ann. Cas. 881. and notes.

The principles above stated are mere rules of evidence formulated by the courts for the administration of justice. In establishing and enforcing rules of procedure the courts are guided by the experiences of the past, and have regard for public policy and the general welfare, as well as for the rights of individuals. Public policy and rules of procedure may be determined and established by the lawmaking power acting within its authority. Legislative enactments are presumed to be for the general public good. There is no vested right or interest in any mere rule of judicial procedure existing at common law or otherwise provided. Rules of evidence relate to judicial procedure, and are subject to legislative action within constitutional limitations securing private rights. See: Stearns & Culver Lumber Co. v. Fowler (decided at this term) 50 South. 680; McGehee, Due ProState v. Woodrow, 58 W. Va. 527, 62 S. E. 545,

112 Am. St. Rep. 1001.

Moore v. State, 45 Tex. Cr. R. 234, 75 S. W. 497, 108 Am. St. Rep. 952.

whether the exemption from adverse testimony of husband or wife is regarded as a disqualification or as a privilege, such exemption is not affected by the statutes, but it remains as at common law. In the cases of Everett v. State, 33 Fla. 661, 15 South. 543, and Walker v. State, 34 Fla. 167, 16 South. 80, 43 Am. St. Rep. 186, the objection was not specifically upon the ground that the wife was privileged not to testify against her husband. In neither case was the privilege claimed as such. The precise point presented here does not appear to have been considered by this court in any other case.

Where statutes modify the rules of the common law disqualifying witnesses on account of interest or identity of interest, such statutes do not affect the rules of law relating to incompetent testimony or to privileged testimony, unless an intent to do so clearly ap pears. See: Underhill's Crim. Ev. § 185; Wigmore on Ev. § 2245; Mercer v. State, supra.

The common-law rules giving to husband and wife the privilege of not testifying against each other in judicial proceedings and rendering such testimony incompetent in the interest of the public, being based upon considerations involving the welfare of human se