Affirmation. The statutes of the United States provide that the requirement of an "oath" shall be deemed. complied with by making affirmation in judicial form.'

For the violation of the truth in such cases the witness is subject to the punishment of perjury, as if he had been

sworn.

Incompetency from Want of Understanding. Under this head will be considered :

(1st) Children. In former times the age of a child was regarded as the criterion of competency; but now competency is determined by the degree of understanding which a child appears to possess. At the age of fourteen the law presumes every person to have common discretion. and understanding until the contrary appears; under that age, competency not being presumed, it is proper to make inquiry as to the degree of understanding, and if the child appears to have sufficient natural intelligence, and to have been so instructed as to comprehend the nature and effect of an oath, he is admitted to testify, whatever his age may be. If the child, being a principal witness, appears not yet sufficiently instructed in the nature of an oath, the court will, in its discretion, put off the trial that this may be done."

(2d) Idiots and Lunatics. Persons not possessing the full use of their understanding cannot be allowed to testify. An idiot is a person who has been non compos mentis from his birth, and who has never had any lucid intervals. He cannot be received as a witness. A lunatic is a person who has had understanding, but who, by disease, grief, or other accident, has lost the use of his reason. If he has lucid intervals he may be allowed to testify, but he must have been of sound mind at the time the event happened, and also at the time he testifies; and it ought to 2 Greenleaf, Vol. I. § 367.

1 § 1, Revised Statutes.

appear that no serious fit of insanity has intervened. Intoxicated persons are not allowed to testify until sober.

(3d) Deaf and Dumb Persons. Persons deaf and dumb from birth, in contemplation of law, are regarded as idiots. If, however, they are shown by the party adducing them to have sufficient understanding, they may give evidence either by writing, or by signs interpreted to the court.

Incompetency from Interest. The general rule in both criminal and civil suits is that a party interested is not competent.

So far as courts-martial are concerned, the following cases need alone be considered:

(1) Relationship. Husband and wife are, in general, incompetent witnesses for or against each other, on the ground of identity of interest, the great danger of perjury, and the extreme hardship of the case. Where the rela

tion of husband and wife has once existed, even after the relation has ceased, the parties are incompetent to testify for or against each other as to matters which occurred during the continuance of the relation.

The rule applies only to lawful marriages. Where a woman has cohabited with a man as his wife, but is not so in fact, she is a competent witness for or against him.'

Exceptions. There are certain exceptions to this rule, and it should be remembered that where either party is competent for they are competent against.

(a) Collateral Proceedings. In collateral proceedings, not immediately affecting their mutual interests, their evidence is receivable notwithstanding it may tend to criminate, or may contradict the other, or may subject the other to a legal demand. The reason of this is that they could not be admitted as witnesses, nor could their evidence in the first suit be produced against each other if an

1 Roscoe, p. 148.

action should be brought; nor could the suit be prejudiced by the testimony in the collateral case.

The principle of this rule requires its application to all cases in which the interests of the other party are involved, and, therefore, the wife is not a competent witness against any co-defendant tried with her husband, if the testimony concern the husband, though it be not directly given against him. Nor is she a witness for a co-defendant, if her testimony, as in the case of a conspiracy, would tend directly to her husband's acquittal; nor where, as in the case of an assault, the interests of all the defendants are inseparable; nor in any suit in which the rights of her husband, though not a party, would be concluded by any verdict therein; nor may she, in a suit between others, testify to any matter for which, if true, her husband may be indicted. Yet where the grounds of defense are several and distinct, and in no manner dependent on each other, no reason is perceived why the wife of one defendant should not be admitted as a witness for another.1

(b) Personal Violence. In cases of personal violence the wife is a competent witness against the husband; otherwise she would be subjected to personal injuries without redress; and on the same principle her dying declarations are admissible on a charge of murder by her husband.

Whether the wife may testify against the husband with his consent is a disputed question. The rule seems to be in this country that she cannot.

As to testifying for the husband, De Hart cites the case of Lieutenant T., of the artillery, who was arraigned before a general court-martial which assembled at Detroit, upon a charge of "conduct unbecoming an officer and a gentleman," and, among other facts specified, he was

charged with violence towards his wife, by striking, etc. In relation to this particular part of the accusation, the prisoner, in his defense, presented his wife as a witness. Being objected to, the court finally decided to admit the witness, and she was accordingly sworn, and gave her evidence, which was a positive denial of the act charged against her husband.

De Hart thought in this case that the court-martial violated the rule of evidence; but, inasmuch as by a recent act of Congress the husband could testify in his own behalf, there seems no good reason now why a wife should not be allowed to testify for the husband with his consent.

No other relationship except that of husband and wife excludes from giving testimony. It may affect the credibility of a witness but not the competency.

(2) Accomplices. Persons who have been accomplices in the commission of a crime, with which the prisoner stands charged, are competent to give evidence for or against him. This rule arises from the necessity of the case, as it is often impossible to convict an accused without such testimony. If the party can be convicted without the testimony of the accomplice, he should not ordinarily be called.

The court decides whether to allow an accomplice to be called for the government, and where he is the principal offender he should not be allowed to testify.

Where several persons are charged with the same offense, one may be called for the other so long as he is not sentenced for an infamous offense.

If accomplices are tried jointly, the custom is not to allow them to testify for each other unless a nolle prosequi be entered. The custom in civil courts in joint trials, where there is only slight evidence against an accomplice, is to direct a separate verdict as to him, and, upon his

This

acquittal, to admit him as a witness for the others. custom in civil courts, though founded on reason and justice, cannot, from the necessity of subsequent approval of the sentence to render the same valid, and the consequent delay incident thereto, be acted on to the full extent by military courts; but if such a case should arise on a courtmartial, the evidence producible proving inadequate or impracticable, there can be but little doubt that the court can proceed to pass judgment on the individual whose testimony is deemed essential, and adjourn for such period as may afford time for confirmation, on the promulgation of which, and the consequent release of the desired witness, the court may reassemble and proceed with the trial. The regular course for a prisoner to adopt, who may desire to avail himself of the evidence of a person involved in the same charge, would be, on receipt of a copy of the charges, to urge the necessity of his separate trial, with the authority ordering the court-martial, and, if not attended to, an application to the court would still be open.1

Credibility of Accomplices. Strictly in law a person may be convicted on the testimony of an accomplice without corroborating testimony. In practice, however, owing to the interest which an accomplice may have, it is considered best, in cases of felony, to have confirmation. The amount of confirmation has been a subject of discussion. It is evident it need not be confirmed in every particular. It is considered that it should be confirmed as to some matter material to the issue, and also be corroborated as to the particular person. It is a question for the court to decide how much credibility should be given to the testimony of an accomplice, and how far his testimony should be corroborated.

Privileged Communications. Certain persons, though

1 Simmons, p. 430.