
    5418.
    Wicker v. The State.
   Russell, C. J.

1. The plaintiff in error was aceirsed of larceny from the house, and the nature of the testimony against him required, upon his part, a satisfactory explanation of his possession of the property alleged to have been stolen. _The court correctly permitted proof of the statement alleged to have been made by him at the time of his arrest, touching the origin of his possession; for the alleged explanation constituted a part of the res gestae of the possession; but it was error to admit, over his timely objection, testimony as to a statement of his wife, made in his presence, which imputed to him an explanation of his possession contradicting the explanatory statement which he had just made in the hearing of the witness; and it was also error to admit testimony to the effect that the accused and his wife disputed over the purport of his previous statement. The wife is incompetent to testify either for or against her husband; and this rule applies as well to statements of the wife which would ordinarily be admissible as pai’t of the res gestae as to any other statements which might be elicited from her were she by law a competent witness.

Decided June 22, 1914.

Accusation of larceny from house; from city court of Sanders-ville — Judge Jordan. November 25, 1913.

Evans & Evans, for plaintiff in error.

J. E. Hyman, solicitor, contra.

2. Except as stated above, the trial was free from error.

Judgment reversed.

Roan, J., absent.  