consideration. It is sufficient to say, that where the condition is that the defendant shall leave the state, and he either does not leave, or having left, returns, the original sentence revives remarks of Sergeant Hawkins on the several cases, P. C. book 2, ch. 37, sect. 9); and which, in our country, might admit of a less embarrassed dissention under the terms of the federal Constitution. It is certain that such pardons have not been granted by the crown for some centuries past, and I am not aware that they have ever been known in the United States. But, at any rate, no question regarding them can arise upon the facts before the court. The pardon here is full and unconditional, but not general. Whatever may be the effect of the preamble, reciting as it does a single offence, it must be held to limit, in some degree, the general words of the grant. "3. The third exception is better taken. A comparison of the instrument of pardon with the conviction on which it is supposed to operate shows, as it seems to me, a fatal diversity. The pardon speaks of a conviction at June term,' of the offence of 'counterfeiting the silver coin,' and a sentence thereon of imprisonment.' The record is of a conviction at the 'May sessions,' of two felonies, one forging and counterfeiting ten pieces of coin,' &c., the other, uttering and passing' them, on which there is a sentence of 'fine,' as well as imprisonment. Neither the time of conviction, nor the offences, nor the judgments correspond. 6 "The cases which are digested in Hawkins (ubi supra, sect. 8, &c.), and in Chitty (ch. 19, p. 770*, 771*), and the concurrent opinion of the commentators on this title of the law, all go to this, that wherever it may be reasonably intended that the king, when he granted the pardon, was not fully apprised both of the heinousness of the crime, and also how far the party stands convicted thereof upon record, the pardon is void.' And this being so, what are we to say, where the pardon misrecites the time of conviction, or recites rather an impossible time, — for we have no June term, — and the conviction was in this court; and refers to one felony as its implied subject, and omits another, of which the party was equally convicted, and omits, besides, a portion of his sentence. this a case in which it can reasonably be intended that the executive was fully apprised of the crime of the party, or the action of the court upon it? Is "There is nothing of which we can take hold, to connect the pardon with the conviction, and thus to make them commensurate. We must begin by assuming that June term means May sessions; next, that the offence of counterfeiting includes the independent felony of uttering;' and then, that a sentence to fine and imprisonment is sufficiently described as a sentence of imprisonment; and if either of these assumptions is too broad, there is nothing left for us but an interpretation of the instrument, ex visceribus suis, without reference to anything beyond. We cannot, by judicial construction, expand the pardon of one felony into a pardon of two; and unless we do this, the pardon, though it be not void, has no application to the felony of which George was convicted under the second count of the indictment against him. "I must therefore hold, that the witness, notwithstanding the pardon, was incompetent, propter delictum, and that the prisoner is entitled to a new trial." and may be enforced. e It was said, however, where the condition was merely that the defendant should "depart without delay," that the sentence did not revive on the defendant returning, after having once left. f When the time for departure is specified in the pardon, it will not begin to run during sickness or incapacity.g A pardon with a condition precedent does not operate until the condition is performed. h In Massachusetts, conditional pardons are expressly sanctioned by statute, and provisions are given by which the conditions may be enforced. i The word pardon includes the idea of release; and a pardon by the governor, of one convicted of conspiracy, even after sentence, will operate a release of all fines imposed for the offence, though these fines were due not to the commonwealth, but to the country. ¿1 In Pennsylvania, the revised code (1860) provides : "Where any person hath been, or shall be convicted of any felony, not punishable with death, or any misdemeanor punishable with imprisonment at labor, and hath endured, or shall endure the punishment to which such offender hath been or shall be adjudged for the same, the punishment so endured shall have the like effects and consequences as a pardon by the governor, as to the felony or misdemeanor whereof such person was so convicted: Provided, That nothing herein contained, nor the enduring of such punishment, shall prevent or mitigate any punishment to which the offender might otherwise be lawfully sentenced on a subsequent conviction for any other felony or misdemeanor, and that the provisions of this section shall not extend to the case of a party convicted of wilful and corrupt perjury."j e Flavel's case, 8 W. & S. 197; State v. Smith, 1 Bailey, 283; State v. Chancellor, 1 Strob. 347; People v. Potter, 1 Parker C. C. 47; State v. Fuller, 1 McCord, 178; State v. Addington, 2 Bai'ey, 516; R. v. Foxworthy, 7 Mod. 153; Roberts v. State, 14 Missouri, 138; R. v. Thorpe, 1 Leach, 391; R. v. Aickless, 1 Leach, 294; Opin. of Att. Gen. 341-5; Ibid. 368; Wells, ex parte, 18 How. U. S. 307; People v. Potter, 1 Edm. (N. Y.) Sel. [As to effect of Southern amnesty acts, see State v. Keith, 63 N. C. 140; Haddix v. Wilson, 3 Bush, 523; and ante, § 591 e. As to foreign pardons, see ante, § 591 g.] III. RELATIONSHIP. 1. Husband and Wife. § 767. Inadmissible for or against each other, and also for or against parties jointly tried. Husband and wife cannot be witnesses for one another; nor regularly against one another ;j1 nor for or against any other person indicted and tried jointly with the husband or wife for a joint offence. k Thus, in conspiracy, law of evidence, but which is calculated to promote the discovery of truth, and advance the purposes of justice. While the decisions of courts in civil cases have been continually narrowing the rules which exclude witnesses from being heard, the old principle, which closes the lips of the party convicted of an infamous crime, has been left untouched and unimproved. The testimony of a witness in a criminal accusation is the right of the community, not of the witness. In crime, it is the public peace that has been disturbed, the public order which has been infracted, and the means through which the offender is to be brought to justice is peculiarly the property of the public. To say, that because a man has once committed a crime, his lips are forever to be sealed in a criminal court, is in effect punishing the public he has wronged, not the individual excluded from testifying. The practical effect of the rule of exclusion is to give immunity to the subtle knaves, who cunningly employ instruments who they know can never betray them, because a supposed legal policy has guaranteed their silence. The pardoning power, it may be supposed, would reach this evil. But experience demonstrates this remedy not to be particularly effective. It frequently happens, from the natural reluctance a man has of communicating more of his infamy than arises from the particular transaction, and the hope that the fact of his previous conviction may have escaped notice, that this discovery is for the first time made, when the exception is taken to his testimony on the trial. The result frequently is the triumph of villainy and the defeat of justice. By abolishing the absolute rule of excluding such witnesses from testifying, but permitting the fact of his conviction to be given in evidence to affect his credibility, the public right to the testimony of the witness is preserved, and every fair opportunity is given to the accused to impeach his credibility before the jury. It may be well to add that England, from whom we originally borrowed this rule of exclusion, has by her recent statute for improving the law of evidence, 6 & 7 Victoria, chapter 85, abolished it, and declared that no person offered as a witness shall hereafter be excluded by reason of incapacity for crime.” j1 2 Hawk. c. 46, s. 16; Com. v. Marsh, 10 Pick. 57; Snyder v. Snyder, 6 Binney, 488; Corse v. Patterson, 6 Har. & Johns. 153; Lucas v. State, 23 Conn. 18. k R. v. Smith, 1 Mood. C. C. 289; R. v. Hood, 1 Mood. C. C. 281; State the wife of one of the defendants should not be allowed to testify against any of the others, as to any act done by him in furtherance of the common design; particularly after evidence given connecting the husband with the defendant in the general conspiracy. On an indictment against several defendants, for a conspiracy to charge the wife of one of them with adultery, such wife is not a competent witness. m This inadmissibility is based on questions of general social policy, and is not abrogated by the statutes enabling a defendant to be examined in his own behalf. m1 But this does not apply to statements of wife to husband overheard by third parties. The rule is confined to the admission of testimony of either husband or wife in court, and does not extend to statements made by one to the other. Thus a conversation between the respondent and her husband, tending to show an admission of her guilt to him, and overheard by a witness in an adjoining room, is admissible against the defendant. m2 § 768. Nor does the rule apply to separate suits where the acquittal of one defendant does not operate on the other. But where the grounds of defence are several and distinct, and in no way dependent on each other, as is observed by Mr. Greenleaf, "no reason is perceived why the wife of one defendant should not be admitted as a witness for another;"n and where the acquittal of one defendant does not necessarily involve the acquittal of the other, the wife of one defendant, where the trials are separate, is a witness for the other. o Thus where H., D., S., Z., and T. were jointly indicted for murder, and a separate trial awarded to T., and upon the trial of T. he offered to prove an alibi by the wives of H. and S., it was held, that they were competent witnesses. The court, after reviewing the authorities upon the question, said: "The mere fact that the husband is a party to the record does not of itself exclude the wife as a witness on behalf v. Smith, 2 Iredell, 402; Com. v. Rob- 1 R. v. Sergeant, 1 R. & M. 352. m1 People v. Reagle, 60 Barbour, 527; Steen v. State, 20 Ohio St. 333. m2 State v. Center, 35 Vermont, 379. n 1 Greenleaf on Evid. § 335. o State v. Anthony, 1 McCord, 286; Com. v. Manson, 2 Ashmead, 33; Com. v. Easland, 1 Mass. 15. Though see Pullen v. People, 1 Dougl. 48. of the other parties, but the rule of exclusion is only to be applied to cases in which the interest of the husband is to be affected by the testimony of the wife." o1 Bastardy. The wife is not competent to prove non-access of the husband; but she may from necessity, in a case of bastardy, be examined to prove her criminal intercourse with another.p § 769. Incompetent to charge her husband though not on trial. — A married woman cannot be called to prove a conversation between the prisoner and her husband, which goes to show that her husband and the prisoner committed the felony for which the prisoner is tried. q Rule does not apply when husband has been already convicted.· But the wife of a person already convicted for the same offence is a competent witness against the prisoner; r and if the conviction of the prisoner against whom she is called will strengthen the hope of pardon for her husband, who is already convicted, this only affects her credibility. 8 Nor in cases of violence on wife. - Where, however, violence has been committed on the person of the wife by the husband, she is competent to prove such violence. t On the trial of a man for the murder of his wife, her dying declarations are evidence against him. u And in all cases of personal injuries committed by the husband or wife against each other, the injured party is an admissible witness against the other. v On this rule, however, the supreme court of North Carolina has grafted the qualification that the assault must amount to an attempted felony, or to a lasting injury, or great bodily harm. ol Thompson v. Com. 1 Metcalf, Ky. 13; see Cornelius v. Com. 3 Metcalf, Ky. 481. p State v. Pettaway, 3 Hawks, 623; Com. v. Shepherd, 6 Binney, 283–290; Com. v. Connelly, 1 Browne, 284. R. v. Gleed, Harrison's Dig. 2210; R. v. Williams, 8 C. & P. 284. r R. v. Williams, 8 C. & P. 284. 8 R. v. Rudd, 1 Leach, 115. t State v. Davis, 3 Brevard, 3; U. S. v. Smallwood, 5 Cranch C. C. R. 35. u Woodcock's case, 1 Leach C. C. 500; John's case, 1 East P. C. 357 w 1 Phil. Evid. 75, n. 1; Penn. v. Stoops, Addison, 382. v R. v. Jagger, 1 East P. C. 455; R. v. Pearce, 9 Car. & P. 667. w State v. Hussey, 1 Busbee, 123. In this case, Nash, C. J., said: "Mr. Greenleaf, 1st vol. § 343, in enumerating the cases in which a wife may be examined as a witness, states some which are for felonies, or acts leading to felonies, and refers to one for assault and battery on her. For this he refers to Agire's case, 1 Strange, 633, where it is reported in about as |