§ 4. is called for the prosecution to give evidence as to the former offence, it becomes the duty of the Judge to warn the jury that the testimony of the wife or husband is admissible for the prosecution only on the first count, and that if they acquit the defendant on that count, they ought in considering the second count wholly to disregard any incriminating testimony given by the wife or husband: see R. v. Paul (1890), C. C. C. R., 25 Q. B. D. 202, at 210; 62 L. T. 845, at 848; 59 L. J. M. C. 138; cf. R. v. Fuidge (1864), L. & C. 390; 33 L. J. M. C. 74; for "each count is as it were a separate indictment": per Blackburn, J., in Latham v. R. (1864), 5 B. & S. 635, at 642-3; 33 L. J. M. C. 197, at 199; 9 Cox, C. C. 516. If the Judge fails to give such warning, and the defendant is convicted on the second count only, the conviction will be quashed: R. v. Paul, ubi supra.

If, however, instead of there being two counts in the indictment, there is a single count, with respect to which the defendant's wife or husband can be and is called as a witness for the prosecution, and if it is competent for the jury, under a special statutory enactment, upon that indictment to find the defendant guilty of another offence, with respect to which the testimony of the wife or husband would not be admissible for the prosecution; although without the testimony of the wife or husband there is not sufficient evidence to convict of either offence, yet it has been held that it is competent for the jury to have regard to such testimony when considering the second offence; and where they convicted the defendant of the latter offence only, the conviction was upheld: cf. R. v. Wealand (1888), C. C. C. R., 20 Q. B. D. 827; 57 L. J. M. C. 44; 58 L. T. 782; and the observations upon it in R. v. Paul (1890), 25 Q. B. D. at 212.

In the case of R. v. Wealand the indictment contained a single count charging the defendant with unlawfully and carnally knowing a girl under the

age of 13, which is a felony under s. 4 of the Criminal § 4. Law Amendment Act, 1885. The girl, who did not understand the nature of an oath, gave evidence not upon oath, as she is enabled to do by that section upon that charge. The jury acquitted the prisoner of that charge, but found him guilty of indecent assault, as they are enabled to do by s. 9 of the same Act. There is no provision in that Act rendering unsworn testimony admissible upon an indictment for indecent assault; and apart from the girl's testimony, the evidence was insufficient to support the conviction. Upon a case stated for the opinion of the Court, the conviction was affirmed upon the ground that the evidence being expressly made admissible upon the only count contained in the indictment, the jury were entitled to take it into their consideration, while s. 9 expressly empowered the jury to find the verdict which they did find: R. v. Wealand (1888) (ubi supra), explained in R. v. Paul (1890), C. C. C. R., 25 Q. B. D. 202, at 212; 62 L. T. 845, at 848; 59 L. J. M. C. 138.

With regard, however, to the decision in R. v. Wealand, although there was only a single count, that count by virtue of s. 9 contained in effect two distinct charges, viz., 1. unlawfully and carnally knowing a girl under 13 (a felony); 2. indecent assault (a misdemeanour): see R. v. Guthrie (1870), L. R. 1 C. C. R. 241; 39 L. J. M. C. 95; 22 L. T. 485. Such a joinder of a felony and a misdemeanour in one indictment is of course only permissible by virtue of a statute. The effect of this particular enactment-s. 9 of the Act of 1885--is analogous, it is conceived, to that of the enactment contained in s. 61 of the Common Law Procedure Act, 1852, which enabled a plaintiff in a civil action for libel or slander to succeed upon proving that the words set forth in his declaration and published by the defendant were actionable, without being required to prove the meaning attached to them in his declaration. After the passing of the latter enactment a

§ 4. single count for libel with an innuendo that the words were used in a particular sense was regarded "as if there were two counts, one with the innuendo and one without the innuendo": per Blackburn, J., in Watkin v. Hall (1868), L. R. 3 Q. B. 396, at 402; 37 L. J. Q. B. 125; 18 L. T. 561.

Again, independently of statutory enactment, where the offence charged in an indictment includes an offence of inferior degree, it is always competent at common law for the jury to acquit the defendant of the higher offence and convict him of the lesser, provided that both offences are of the same class, i.e., either felonies or misdemeanours: R. v. Hunt (1811), 2 Camp. 583; R. v. Taylor (1869), L. R. 1 C. C. R. 194; 38 L. J. M. C. 106; 1 Cox, C. C. 261; 4 F. & F. 511; R. v. Guthrie (1870), L. R. 1 C. C. R. 241; 11 Cox, C. C. 522; 39 L. J. M. C. 95; 22 L. T. 485; Boaler v. R. (1888), 21 Q. B. D. 284; 57 L. J. M. C. 85; 59 L. T. 554; 16 Cox, C. C. 488. Accordingly, if the indictment contains a single count for murder, the prisoner can be convicted of manslaughter, each being a felony; if it contains a single count for malicious wounding, the prisoner can be convicted of common assault, each being a misdemeanour: see R. v. Taylor (1869), ubi supra. The decision in R. v. Wealand (ubi supra) is expressly limited, it is true, to the construction of s. 9 of the Act of 1885, but if the principle of that decision be correct it would also seem to apply to cases like those just mentioned of an indictment containing a single count, where it is competent for the jury at common law to find the defendant guilty of a lesser offence.

It is submitted, however, that the distinction between the decisions in R. v. Wealand and R. v. Paul is not well founded; that in the one case to allow the jury without warning to consider evidence upon a charge in respect of which it is inadmissible on the ground that the indictment as a matter of form contains only one count, although in effect it contains two charges; and in the other case to direct the jury

that they must not consider such evidence if each § 4. charge is contained in separate counts of the indictment is to make a distinction not based upon sound principle; and that the principle of the decision in the later case of R. v. Paul ought to prevail.

ILLUSTRATIONS.

1. A. is charged on an indictment containing two counts:
(i) Indecent assault on X. (under s. 52 of the Offences
against the Person Act, 1861, referred to in Sche-
dule, post, p. 55).

(ii) Common assault on X. (under s. 47 of the same Act,
not referred to in Schedule, ibid.).

If A.'s wife be called as a witness for the prosecution (under the present section), it is the duty of the Judge to direct the jury that, as A.'s wife is not a competent witness for the prosecution on the second count, if they acquit A. on the first count, they ought, in considering the second count, wholly to disregard any incriminating testimony given by A.'s wife see R. v. Paul (ubi supra).

If the Judge fails to give such a direction, and A. is convicted on the second count only, the conviction will be quashed: see R. v. Paul, ibid.

2. A. is charged on an indictment containing a single count for indecent assault on X. (under s. 52 of the Offences against the Person Act, 1861, referred to in Schedule, post, p. 55). The jury are entitled at common law to acquit A. of the indecent assault and convict him of common assault,

If A.'s wife be called as a witness for the prosecution (under the present section), it is the duty of the Judge to direct the jury that, as A.'s wife would not be a competent witness for the prosecution on a charge against A. of common assault, if they acquit A. of indecent assault, they ought, in considering whether A. is guilty of a common assault on X., wholly to disregard any incriminating testimony given by A.'s wife submitted; but see R. v. Wealand (ubi supra).

If the Judge fails to give such a direction, and A. is convicted of common assault only, the conviction should be quashed: submitted; but see R. v. Wealand (ubi supra).

(ii) Under Evidence Act, 1877. Besides the case of an offence referred to in the Schedule, the defendant's wife or husband (as also the defendant himself) may be compelled to give evidence for the prosecution in proceedings for the non-repair of, or

§ 4. for a nuisance to, a highway, bridge, &c., or for trying or enforcing a civil right only, by virtue of the Evidence Act, 1877, which is not affected by this Act: see s. 6 (1), post, p. 50, and note 2 thereto, post, p. 52.

3 In what cases the Defendant's wife or husband may be called as a witness for the prosecution at common law.

The rule with respect to this question of competency at common law is thus stated by Sir James Fitzjames Stephen :—

"In criminal cases the accused person and his or her wife or husband, and every person and the wife or husband of every person jointly indicted with him and tried at the same time is incompetent to testify.

"Provided that in any criminal proceeding against a husband or wife for any bodily injury or violence inflicted upon his or her wife or husband, such wife or husband is competent and compellable to testify": Stephen's Dig. Evid. Art. 108, and see note XLI., 3rd ed. 114, 178; 4th ed. 121, 194.

ILLUSTRATION.

A. and others are jointly charged with conspiring to take away B., an heiress, by force, and to marry her to A., and the prosecution alleges that B. has under duress been married to A. B. is a competent witness: R. v. Wakefield (1827), 3rd count, 2 Lew. C. C. at 10, 287; and Trial, pub. by Murray, at 7, 257; see Rosc. 119.

On the same principle, the dying declaration of a deceased wife or husband is admissible when her husband or his wife is charged with the homicide of the deceased: R. v. Woodcock (1789), 1 Leach, 500; R. v. John (1790), ibid. 504, n.; 1 East, P. C. 357; Stoop's Case (1799), Addison, R. (Pennsyl.) 381; Rosc. 119.

It appears, however, open to doubt whether the exception, stated by Sir J. F. Stephen as a proviso to the general rule, is expressed in terms sufficiently wide to cover every case in which such wife or husband was at common law a competent witness.