relation, continues in full force." This case was decided in 1878.

Following the foregoing decisions by this court, chapter 200 of the Acts of the General Assembly of the year 1879 (the substance of which appears in §§ 5596 and 5597 of Shannon's Code) was passed.

The effect of the act of 1879 was to make husband and wife competent witnesses in all civil actions in the courts of this state, notwithstanding their relationship, provided that neither of them "shall testify as to any matter that occurred between them by virtue or in consequence of the marital relation."

But the act passed in 1879 left the common law in force in so far as the competency of either for or against the other in criminal actions was concerned, as was held by this court in Owen v. State, 89 Tenn. 698, 16 S. W. 114, already referred to.

against the husband, and to sustain this proposition, we are referred to the case notes upon State v. Woodrow, 2 L.R.A. (N.S.) 863.

We do not question the soundness of the proposition that, by way of exception to the general rule of incompetency, the wife is competent to testify against her husband whenever she is the individual directly injured by a crime committed by her husband, or is otherwise injured by him, and where the facts are peculiarly within her knowledge, and impossible or difficult of proof by any other witness. This was the principle announced in State v. Bean, supra, and it is also the ground on which many of the cases were decided which are cited in the note above referred to. Cases falling within this principle are well-recognized exceptions to the general rule at common law.

But does the case at bar fall within that In the latter case, Owen was indicted for principle? Here the wife was offered as a incest committed on the body of his step-witness against the husband to make proof daughter. Owen offered his wife as a wit of an offense committed by him, not upon ness in his behalf on the trial in the court her as his wife, but at a time before she below, and her evidence was excluded, upon became his wife; and the important queswhich action of the court Owen assigned tion here arising is: Can such a case be error. This court, speaking through Mr. said to fall within any exception known Justice Snodgrass, said: "There was no to the common law? error in excluding the wife on objection. At common law, she could not be a witness for her husband in such case, and we have no statute changing the rule." This case was decided in 1890.

We have had no legislation in this state since the decision in the case of Owen v. State, supra, affecting the competency of husband and wife to testify for or against each other in criminal actions.

It is, however, urged on behalf of the state, that the case at bar falls within an exception to the common-law rule of incompetency announced by the court of appeals of Missouri in State v. Bean, 104 Mo. App. 255, 78 S. W. 640, wherein that court used the following language: "Another exception to the rule is to permit the wife to testify against the husband whenever she is the particular individual directly injured by the crime committed by her husband, and the facts are peculiarly with in her knowledge, and impossible or difficult of proof by any witness other than his wife." It appears from the report of that case that it was a prosecution of the husband for abandonment of, and failure to provide for, his wife; and it was there held that the wife was a competent witness against the husband.

If the wife in this case be held a competent witness to testify to a crime committed upon her body by Norman before he became her husband, it is difficult to see by what process of reasoning the wife could be rejected as a witness in a case where, before her marriage, she should see her husband commit a crime upon the body of a third person; and to hold her a competent witness in the latter case works a destruction of the general rule of incompetency which has come down to us from the common law in an unbroken line of decisions.

It is not for this court to declare a new public policy for this state on this subject. The failure of the legislature to include criminal actions in the act of 1879 is, in effect, a declaration by the legislative department of the state that the general rule of incompetency as fixed by the common law should remain the rule or public policy in this state so far as the competency of husband and wife as witnesses for and against each other in criminal cases is concerned; and by that declaration this court is bound.

There is no case in this state to which we may refer as supporting our view of this question. We have been referred to It is also said in behalf of the state that five cases, however, decided by courts of all the authorities agree that, in a prosecu last resort in other states, which, we think, tion against a husband for an assault upon support our view: People v. Curiale, 137 his wife, the wife is a competent witness | Cal. 534, 59 L.R.A. 588, 70 Pac. 468.

In that case it appears that a statute of, cited in the note to Moore v. State, supra, California provided that neither husband are Audley's Case, 3 How. St. Tr. 414; 1 nor wife should be a competent witness for or against the other in any criminal action, except "in cases of criminal violence upon one by the other."

The court held that, as the crime charged was not an act or crime committed by defendant upon his wife, but was an act committed upon the person of a woman before she became his wife, she, after becoming his wife, was not a competent witness against him. The defendant in that case was indicted for rape, in that he had carnal knowledge of a girl who was only sixteen years old, and who afterwards became his wife, and was offered as a witness against him on the trial.

Bl. Com. 443 & 208; Wakefield's Case, 2 Lewin C. C. 1, 279; Reg. v. Yore, 1 Jebb & S. 563; Brown's Case, 1 Vent. 243; Fulwood's Case, Cro. Car. 482; Rex v. Locker, 5 Esp. 107; Rex v. Serjeant, Ryan & M. 352; Rex v. Perry, 1 Hawk. P. C. chap. 41; Haagan Swendsen's Case, 5 St. Tr. 456; Pedley v. Wellesley, 3 Car. & P. 558.

From these authorities as digested in the note are deducible the conclusions reached by Mr. Greenleaf already quoted.

We find in none of these cases any warrant for the conclusion that the wife would be competent as a witness against the husband upon his trial for an offense consisting of violence to her person or other injury to her, unless the act occurred during the existence of the marriage relation, or was brought within it by force exerted by him, beginning before and continuing into and beyond the beginning of that relation; and we think the ground of exception in cases of forcible abduction and marriage, under Stat. 3 Henry VII. chapter 2, was that there was no free consent by the socalled wife to the marriage contract, and hence no marriage, and no wife de jure, so that she, who in such case was offered as a wife witness, was in law not a wife. In the case at bar, the element of force as affecting the wife's consent to the mar

State v. McKay, 122 Iowa, 658, 98 N. W. 510. In that case the Iowa statute under which that case was decided provides that "neither the husband nor the wife shall, in any case, be a witness against the other, except in a criminal prosecution for a crime committed one against the other, or" (and then follow certain exceptions in civil cases). The Iowa court held that the statute contemplated a crime committed by one spouse against the other "while they occupy that relation," and, therefore, under the general prohibition of the statute, the wife was not competent as a witness against the husband, where the crime was committed before the marriage contract is wholly lacking; she enriage.

State v. Frey, 76 Minn. 527, 77 Am. St. Rep. 660, 79 N. W. 518. In that case the statute was substantially the same as the Iowa statute involved in State v. McKay, supra; and the Minnesota court held substantially as did the Iowa court, saying: "The statute deals with the parties in the marriage relation, and not as to acts committed before the marriage." And further: "The proposition that a guilty man may defeat the ends of justice by marrying after the act the principal witness for the state seems at first blush to be contrary to the dictates of common sense and common justice. Whether the claims of public justice in such a case are superior to the considerations of public policy upon which the prohibition rests is a debatable question, the solution of which belongs exclusively to the legislature."

To the same effect, in substance, as the cases above mentioned, are People v. Schoonmaker, 117 Mich. 191, 72 Am. St. Rep. 560, 75 N. W. 439, and State v. Evans, 138 Mo. 116, 60 Am. St. Rep. 549, 39 S. W. 462. See also Moore v. State, 67 L.R.A. 499, and the notes thereon.

Upon the question of the rule and its exceptions at common law, the authorities

tered into it free from coercion; she testifies that, before the first act of intercourse between her and defendant, he promised to marry her if she would yield to his desire; and it is manifest that she did yield, and that without force exerted by him. She also testifies that she loved him, and wished to marry and live with him as a wife. To be sure, it may be well said that she, by virtue of our statute, could not consent to the first act of intercourse, yet she could and did consent to the marriage contract, for she was well over the age enabling her to make that contract.

So the point here is that, if the first act be conceded to have been a penal offense accomplished by force, since she was disabled to consent to it, yet it was a wrong wholly unconnected with her consent to the marriage, and can in no sense be said to have caused her consent, since it is clear that both before and after the marriage it was her desire to be his wife, and that she by the marriage became a wife de jure, and not, as in the Lord Audley and other abduction cases, merely a wife de facto, we have no doubt.

Stat. 3 Henry VII. chapter 2, was passed for the correction of an evil prevalent in feudal times and vulgarly known as "steal

ing an heiress;" and such crimes were, in general, done by force, as in Audley's Case, though in Wakefield's Case consent of the lady was accomplished by means of fraud, which was held to amount in law to force, so that her consent to the marriage was not freely given; and it is to be observed that the admission of the evidence of the female in such cases does not really, on analysis, amount to an exception to the general rule, since the evidence admitted was not that of a wife by the law. Blackstone, bk. 4, chap. 15.

We agree with the Minnesota court in that portion of its opinion above quoted from State v. Frey, supra. And in respect to its suggestion as to whether the claims of public justice in such a case as the one at bar are superior to the considerations of public policy upon which the prohibition rests, we suggest that an argument in favor of the incompetency of the wife as a witness in such a case on the grounds of public policy is the welfare of children born as a result of illicit relations between their parents, who might be legitimatized by the marriage between the parents, although made for the purpose on the part of the father of avoiding prosecution for unlawful carnal knowledge of the mother. Another consideration of weight is that, if the wife be held incompetent to testify in such cases, marriage will undoubtedly with more frequency follow the illicit relation, and thus, perhaps in many cases, both mother and child be saved the shame and degradation which inevitably follows a successful prosecution of the husband and father.

Note.

(April 29, 1913.)

Since the earlier note was written, there

Admissibility of finding of coroner to show cause of death. No public policy is sound which, in the This note is supplemental to one covername of public justice, invades the home ing the same subject attached to Ætna L. and takes therefrom the wife as a witness Ins. Co. v. Milward, 68 L.R.A. 285. against the husband or the husband against seems to have been no change of front in the wife, and, by means of the evidence of the opinions of courts as to the admissibilone, consigns the other to the gallows, the ity of a verdict of a coroner's jury to show penitentiary, or the jail. An increased cause of death, the courts generally folnumber of convictions might result from lowing the earlier decisions in their respectsuch a policy, but at a cost which the pub-ive jurisdictions as to the admissibility lic could ill afford. The home is the sanc- or nonadmissibility of such evidence. tuary of our civilization, and the increased number of convictions would not compensate for the homes destroyed.

If the case on its facts falls within any well-recognized exception known to the common law, such evidence, of course, must be admitted; but, even in such a case, its influence on society is hurtful.

Upon a full consideration, we are constrained to hold that the wife was not a competent witness in this case, and, as we think the conviction of the defendant

would not have resulted if she had been excluded as a witness, the cause must be reversed and remanded for a new trial.

In homicide.

In State v. Coleman, 186 Mo. 151, 69 it was said that there is no question but L.R.A. 381, 84 S. W. 978, trial for homicide, that a verdict of a coroner's jury as to the manner of death is inadmissible for any

purpose.

And in Hedger v. State, 144 Wis. 279, 128 N. W. 80, a coroner's verdict to the effect that on a certain day some unknown person had committed a certain murder, at trial for the murder, as incompetent, irwas held properly excluded, as evidence relevant, and immaterial. The court stated that, even though the verdict were given all the solemnity and evidential effect of

A

Statement by Vinje, J.:

PPEAL by defendant from a judgment on all members in good standing in the of the Circuit Court for Waupaca | fraternity, not to exceed $1,000. The cerCounty in plaintiff's favor in an action tificate also provided that if the holder brought to recover the amount alleged to thereof should die by his own hands, be due on a life insurance policy. Affirmed. whether sane or insane, then it should be null and void and of no effect, and that all moneys paid or rights accrued thereunder The defendant is a fraternal benefit as- should be absolutely forfeited. William sociation organized and doing business un-Krogh died on June 6, 1911. Proofs of der and by virtue of the laws of Iowa, and death were furnished defendant, and upon as such organization is lawfully admitted its failure to pay the insurance within the to transact business in this state. On time specified in the certificate, an action September 14, 1908, it issued to William was brought thereon. The defendant set Krogh, the husband of the plaintiff herein, up the defense that William Krogh died a certificate of insurance upon his life, by an intentional act of his own hand. The which entitled the beneficiary, Ida Krogh, jury found (1) that the death of William his wife, to participate in the mortuary Krogh was not caused by suicide, and (2) fund to the amount of one full assessment that he was sane at the time of his death. a judgment of a court of record, yet it ing in three attributes of such an inquest merely adjudges that on a certain date the at common law: First, it may not be pubcoroner and jury did not know who did the lic; second, no one save the counsel for killing, and while, in a few criminal cases, the state and the accused and his counsel such evidence has been admitted to show have the right to examine the witnesses; the fact that homicide was committed, or and third, there is no means by which the to prove the fact of death, yet there are finding upon the inquest may be reversed well considered cases where the court has and set aside. Evidently, the proceeding refused to admit such kind of evidence. is not one in rem, nor does it bear any analogy to such a proceeding. Therefore we are of opinion that, in providing for a post mortem inquest, under the restrictions above mentioned, it was not the purpose of our lawmakers to give it all the attributes, and to attach to it all the consequences, of a similar inquest at common law. Especially do we think that it was not a purpose of our lawmakers to make the inquest a means of perpetuating testimony to be used in a civil suit, or by the finding of the justice to manufacture evidence for use in a case between other parties.

In action on a claim for life insurance. In Walden v. Bankers' Life Asso. 89 Neb. 546, 131 N. V. 962, the court held the verdict of a coroner's jury as to the manner of insured's death inadmissible in an action by the beneficiary to recover on the policy. It was said that though authorities may be cited to sustain the admissibility of the evidence, they are based upon an adherence to ancient law, which gave great credit to those verdicts and held the coroner's inquest to be substantially an action in rem; but that in this jurisdiction a forfeiture of a suicide's chattels to the state does not follow as a matter of law upon a finding by the coroner's jury that the deceased committed suicide, and that there is nothing in the institutions or written law of the state to justify a holding that the legislature intended to incorporate this feature of the common law into the laws of the state.

And in Kane v. Supreme Tent, K. M. 113 Mo. App. 104, 87 S. W. 547, in holding a coroner's verdict, as to the manner of death, inadmissible, the court said that, considering the loose and unsatisfactory manner in which these post mortems are often held, the verdict of the coroner's jury would, in most instances, be as likely to lead the triers of the fact away from the truth as toward it; and that they ought to be classed rather as hearsay than as the result of a judicial investigation, and for this reason rejected as evidence in civil

cases.

And so, also, in Boehme v. Sovereign Camp, W. O. W. 98 Tex. 376, 84 S. W. 422. 4 Ann. Cas. 1019, the court said: "A post mortem inquest under our law is lack

Even should it be held that the justice's finding at the inquest is admissible in any case, we should doubt the applicability of the rule in the present case. The question before the justice who held the inquest was, whether anyone was responsible for the death of Boehme. Having found that no one was responsible, it seems to us his function was at an end, and he had no power to pass upon any other question. If the death of the deceased was not caused by some other person, the state was not concerned in ascertaining the manner of his death."

And in Chambers v. Modern Woodmen, 18 S. D. 173, 99 N. W. 1107, the court, after a review of the leading cases on both sides of the question, decided against the admissibility, as against the beneficiary, of the verdict of the coroner's jury as to the manner of insured's death. In this case it appeared that a copy of the verdict of the coroner's jury constituted part of the proofs of loss, but it was shown that the beneficiary had no knowledge that such copy was included in the proofs, nor did it affirmatively appear that the by-laws of the company or the benefit certificate required the beneficiary to furnish proofs of

Agen v. Metropolitan L. Ins. Co. 105 Wis. 217, 76 Am. St. Rep. 905, 80 N. W. 1020;waukee Street R. Co. 92 Wis. 330, 66 N. Voelkel v. Supreme Tent, K. M. 116 Wis. 202, 92 N. W. 1104; Hart v. Fraternal Alliance, 108 Wis. 490, 84 N. W. 851; Richey v. Woodmen of World, 163 Mo. App. 235,