STATE v. SIMEON COX.

(Filed 14 April, 1909.)

Husband and Wife — Indictment—Witness—Tender by State — Refusal — Evidence Against Each Other — Improper Comments of Counsel — Appeal and Error.

The State having, the wife of the accused under subpoena. tendered her, and the solicitor commented on the refusal of the defendant to use her in corroboration of his own evidence. Upon objection by the defendant, it became the duty of the trial judge to caution the jury that this refusal of the accused should not be considered by them, and-the judge’s failure to so caution "the jury was reversible error; and his telling them that the State could not use the wife as a witness, but the accused could, was an unintentional accentuation of the error.

INDictment for incest, tried before Long, J., and a jury, at December Term, 1908, of Randolph.

Defendant appealed.

Attorney-General for the State.

Morehead & Sapp for defendant.

Clark, C. J.

Tbe State called tbe wife of tbe defendant, wbo was present under subprena, and tendered ber to tbe defendant. Tbe court ruled tbat tbe State could not examine ber as a witness — tbat sbe was a competent witness only for tbe defendant. Tbe solicitor, in bis argument to the jury, commented on tbe failure of tbe defendant to corroborate bis own testimony by bis wife. On objection made, bis Honor stated tbat “tbe wife was not competent and would not be allowed to bear witness against tbe husband; tbat ber testimony would be competent only in behalf of ber husband, and that as tbe wife was not permitted to testify against ber husband, and bad not done so, tbe jury could not consider what she knew or did not know.” And in bis charge tbe court told tbe jury “it was not for tbe State to examine the wife of tbe defendant as a witness against ber husband, but it was competent for tbe defendant to use ber as a witness.”

*847Tbe Revisal, sec. 1634, provides: “The husband or wife of the defendant, in all criminal actions or proceedings, shall be a competent witness for the defendant, but the’ failure of such witness to be examined shall not be used to the prejudice of the defense.” The tender of the wife by the State and the remarks of the solicitor sharply called attention to the failure of the’ defense to examine the defendant’s wife. Objection was made, but the court, instead of telling the jury that they should not let that fact prejudice the defendant, on both occasions rather accentuated the matter by telling the jury that the State could not use the wife of the defendant as a witness, but that he could. The effect, though unintentional on the part of his Honor, was to throw the fault of the wife not being a witness upon the defendant, since he could have put her on and the State could not. There was no caution that such failure to use the wife as a witness should not be. considered by the jury. Yet the tender, and the remarks of counsel being called to the judge’s attention, called for such caution, and his .failing to give it was prejudicial.

Error.