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Present: Mr. Justice Wendt.1908
THE KING v. MARTHELIS PERERA et al.February 12.
D. C. (Criminal), Colombo, 1,883.
Evidence Ordinance, ss. 118 and 120—Incompetency of wife an a witnessfor the prosecution against prisoners jointly tried with her husband—English Law.
The wife of an accused, who is tried jointly with others, is not acompetent witness for the prosecution even againsttheaccused
other than her husband.
PPEAL by the second and fourth accused from a convictionby the Additional District Judge (M. S. Pinto, Esq.) under
sections 368 and 412 of the Penal Code.
The facts sufficiently appear in the judgment.
H. A. Jayewardene (A. St. V. Jayewardene with him), for theappellants.
Bawa, Acting S.-6., for the Crown.
Cur. adv. vult.
February 12, 1908. Wendt J.—
The appellants, with the first and third accused, were convictedof the charges of stealing a calf (section 368) and committing mis- .chief by killing it (section 412). At the trial the wife of the firstaccused was called as a witness for the prosecution. Counsel for thefirst accused objected to her being examined, but counsel for theprosecution stated that “ she was called as a witness against theother accused,” whereupon the District Judge “ allowed her beingcalled.” At the close of the trial the District Judge convicted all
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1908.four accused. In appeal it was contended that the wife of the first
F«braary 12. accused, who was being tried jointly with the other accused, was anWendt J incompetent witness, and could not be examined for the prosecutionat all, and I took time to consider the point.
Section 118 of our Evidence Ordinance declares that “ all personsshall be competent to testify, unless the Court considers that theyare prevented from understanding the questions put to them, or fromgiving rational answers to those questions by tender years,extreme old age, disease whether of body or mind, or any othercause of the same kind. ” If this enactment stood alone, all objec-tions to the competency of a husband or wife to give evidence for oragainst his or her wife or husband would be swept away. Is thereanything in the Ordinance which retains in any degree the instancesof incompetency which the law prevalent before the Ordinancerecognized? There is no express enactment that a husband or wifeshall in such or such cases be deemed incompetent, but section 120 byspecifying the cases in which such witnesses shall be competent maybe taken to have impliedly enacted that they shall in all other casesbe incompetent. Section 120 was apparently intended to limit thegenerality of the terms of section 118, and not merely to furnishillustrations of the rule'" laid down therein. If this view be right, ahusband or wife can never be called by the prosecution in criminalproceedings against his or her spouse. If therefore my brotherMiddleton intended, in the case of Eliatamby v. Murugappah,1 to holdthat the Magistrate had wrongly rejected the evidence of the fourthaccused’s wife against the second and third accused, I regret that Iam unable to agree with his view. But I do not think he intendedso to hold, for in the concluding paragraph of his judgment he con-siders himself bound to “ follow the English rulings, which point tothe conclusion that such evidence would be inadmissible. It is truemy learned brother ordered a new trial of the second and thirdaccused, but at that trial the wife of the fourth accused could properlybe called against them, her husband being no longer on his trial.
I cannot hold that the point under consideration constitutes acasus omissus in the Evidence Ordinance calling for a recourse tothe English Law of Evidenoe under section 100, because, as I havealready indicated, the previsions of section 118 et seq. are exhaustiveon the subject of the competency of witnesses. I venture, however,to think that even under the present English Law the wife of one ofseveral prisoners under trial at the same time could not be called bythe prosecution at all, being incompetent, and the difficulty could notbe got over by saying that she was only offered as a witness againstthe prisoners other than her husband. One prisoner cannot be calledagainst his fellow prisoner under trial at the same time (section 120(4) renders him competent “ in his own behalf ” only), and “ the wifestands in the same position as the husband ” (per Bovill C.J. in The
i (1907) 3 Bal. 174.
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Queen v. Thomson '). The rule does not appear to belimited to trials W08.by jury, but include summary convictions (Phipson on Evidence, FebruanJ 122nd edition, 438)- I think, therefore, that the evidence of the Wendt J.first accused’s wife was inadmissible and was wrongly received.
I dismiss the appeal of the second accused Marthelis, because thefirst accused’s wife gave no evidence against him, and because, quiteapart from her testimony, there is enough to support his conviction.
The District- Judge, however, expressly uses the wife’s evidencestrongly against the fourth accused Agilis, and I therefore set asidehis conviction and order a new trial in his case. Perhaps it would bethe fairest course that the new trial should take' place before one ofthe other District Judges of Colombo than the gentleman whosejudgment I have been considering.
Conviction of 2nd accused affirmed.
Conviction of 4th accused quashed, and case sent bach fora new trial.
THE KING v. MARTHELIS PERERA et al