George Sutherland

“ Whatever was the danger that an interested witness would not speak the truth and the danger never was as great as claimed-its effect has been minimized almost to the vanishing point by the test of cross-examination, the increased intelligence of jurors, and perhaps other circumstances. The modern rule which has removed the disqualification from persons accused of crime gradually came into force after the middle of the last century, and is to-day universally accepted. The exclusion of the husband or wife is said by this court to be based upon his or her interest in the event. ”

“ The common law by its own principles adapted itself to varying conditions and modified its own rules so as to serve the ends of justice as prompted by a course of reasoning which was guided by these generally accepted truths. ”

“ It may be said that the court should continue to enforce the old rule, however contrary to modern experience and thought, and however opposed, in principle, to the general current of legislation and of judicial opinion it may have become, leaving to Congress the responsibility of changing it. Of course, Congress has that power ”

“ The sole inquiry to be made in this case is whether in a federal court the wife of the defendant on trial for a criminal offense is a competent witness in his behalf. Her competency to testify against him is not involved. ”

“ The fundamental basis upon which all rules of evidence must rest-if they are to rest upon reason-is their adaptation to the successful development of the truth. And, since experience is of all teachers the most dependable, and since experience also is a continuous process, it follows that a rule of evidence at one time thought necessary to the ascertainment of truth should yield to the experience of a succeeding generation whenever that experience has clearly demonstrated the fallacy or unwisdom of the old rule. ”

“ The decision was based, not upon any statute of the United States, but upon the ground that the subject 'is governed by the common law, which, as has been seen, was the law of Texas * * * at the time of the admission of Texas into the Union as a state.' Page 303 of 144 U.S., 12 S.Ct. 617, 630.
We next consider the two cases upon which petitioner relies. In the Benson Case two persons were jointly indicted for murder. On motion of the government there was a severance, and Benson was first tried. His codefendant was called as a witness on behalf of the government. ”

“ Jin Fuey Moy v. United States, supra. And whether by this is meant a practical interest in the result of the prosecution or merely a sentimental interest because of the marital relationship makes little difference. ”