
    The State vs. Jackson Bradley and William Adkins.
    J. B, and W. A. were jointly indicted for murder, W. A. was not arrested, and J. B. was tried separately. The jury found the following verdict. “We find the defendant guilty.” The presiding Judge directed the verdict to be written as follows: “We find the defendant J. B. guilty” — which was done, and the first verdict was erased: — I-Ield, that the direction of the presiding Judge was proper.
    The indictment contained no count charging J. B. separately: — Held sufficient, and motion in arrest of judgment, or for new trial, on that ground, refused.
    At the trial the wife of W. A. was examined as a witness, but was not allowed to testify that W. A. alone was guilty : — Held} that this furnished no ground for a new trial.
    Where two are jointly indicted and one is tried separately, the wife of the one not on trial will not be permitted to testify to matters tending to criminate her husband.
    BEFORE MUNRO, J., AT KERSHAW, FALL TERM, 1855.
    The report of his Honor, the presiding Judge, is as follows :
    “ The prisoner was jointly indicted with one William Adkins, for the murder of a negro boy, named George, between six and eight years of age, the property of the prisoner. Adkins had not been arrested, so that the prisoner was tried alone. The jury returned the following verdict: “We find the defendant guilty.” I instructed the jury to insert in their verdict the name of the defendant; they did so, and wrote upon the record the following verdict: “We find the defendant, Jackson Bradley, guilty.’-’ After they had done so, I instructed the clerk to erase the other verdict, all of which was done in the presence of the jury.
    “In reference to the defendant’s first ground for a new trial, I did refuse to permit the wife of William Adkins, (the other party named in the indictment), to testify that her husband was alone guilty of the murder; and in reference to what i? said in the second ground, I did say to the jury, while commenting on the discrepancies in the statements of the witnesses Jane and John Williams, that, as a general rule, it was considered that the tendency of discrepant testimony in witnesses, was to strengthen rather than to weaken confidence in its truthfulness ; but I, at the same time, admonished them, that in reference to whatever discrepancies there may have existed in the testimony of those witnesses, as well as to their general credibility, upon them had devolved the exclusive task of judging.
    “ On the third ground, I have only to say, that I did state to the jury, as a general proposition, that when a party is charged with a crime, and has by his own act, either by the concealment, or the destruction of the corpus delicti, put it out of the power of the State to produce the highest evidence of its existence, he has no reason to. complain if inferior evidence is adduced ; upon him alone must rest the consequences of the failure; but whether or no there had been a failure in this particular, in the ease before them, was a matter within their exclusive province; and referred them to the testimony of such of the witnesses as had testified on this point, and especially to that of the two physicians and Wiley Bradley.”
    The defendant, Jackson Bradley, appealed and now moved this Court in arrest of judgment, on the grounds :
    1. Because his Honor, the Presiding Judge, erred in directing the jury, after their verdict was published, to write another verdict, which was accordingly done, and read as the verdict of the jury.
    2. Because his Honor erred in directing the clerk to erase the first verdict after the reading of the second, which was accordingly done.
    3. Because it is uncertain what is the verdict of the jury.
    4. Because the defendants are jointly charged in the indictment, and the verdict being, “We find the defendant guilty,” it is uncertain to which of the defendants the verdict refers.
    5. Because Jackson Bradley was tried upon an indictment, in which there was no separate count charging him with the commission of the offence.
    Failing in his motion in arrest of judgment, then he moved for a new trial on the same, together with the following grounds:
    1. Because his Honor erred in refusing to permit the wife of William Adkins to testify that he alone was guilty of the murder charged.
    2. Because his Honor charged the jury that the discrepancies between the statements of Jane Williams and John Williams, in the trial, might support their credibility; whereas, it is submitted such discrepancies were irreconcileable.
    8. Because his Honor charged the jury, that if the State failed to establish the corpus delicti of the offence, by reason of the concealment practised by the accused, the accused must bear the consequences of guilt.
    
      4: Because the charge of his Honor in other respects, and the verdict of the jury were contrary to the law and evidence.
    
      Gaston, for appellant.
    Fair, solicitor, contra.
   The opinion of the Court was delivered by

Munro, J.

A sufficient answer will be found to the objections contained in the defendant’s first four grounds in arrest of.judgment, in the ruling of the Court in the case of the State vs. Motly & Blackledge, 7 Rich. 327, and in reference to the fifth ground, it was by n.o means necessary there should have been a separate count in the indictment, charging the prisoner alone with the crime.

The question raised by the first ground for a new trial js whether there was error in refusing to permit the wife of Adkins — the party jointly indicted with the prisoner, but who had not been apprehended — to testify, that her husband was alone guilty of the murder.

The rule on this subject, is thus stated by Roscoe, in his work on Criminal Evidence, at page 147. — “ Husband and wife are in general' incompetent witnesses, either for or against each other, on the grounds, partly of policy, and partly of identity of interest.” In the case of the King vs. The Inhabitants of Cliviger, 2 T. R. 263, it was ruled — “ The husband and wife are not permitted, from a principle of policy, to give any evidence that may tend to criminate each other; that the obligation is not confined merely to cases where they are directly accused of a crime; but even in collateral cases, where their evidence tends that way; for although the evidence of one could not be used against the other, yet it might lead to a criminal charge, and cause the party to be apprehended.” In the Commonwealth vs. Eastland, 1 Mass. R., it was held, that it is a sufficient ground for a separate trial, that the wife of one is a material witness for the others ; and in the case of the State vs. Smith, 2 Iredell, 402, it is said — “ Whenever the wife of one, is not permitted to testify for the others on a joint trial, she will not be received for them although her husband be not then on trial.”

In the case of the State vs. Anthony, 1 McC. 285, it was held, .that, upon the separate trial of the father, who was jointly indicted with his son for murder, the wife of the latter was a competent witness; and it was upon the authority of that case that the wife of Adkins was permitted to testify in behalf of the prisoner in this case, holding her incompetency to extend no further than to the exclusion of any thing that might tend to criminate her husband.

The remaining grounds of appeal relate entirely to matters that were within the exclusive province of the jury, and we can perceive nothing in the remarks of the Circuit Judge upon the trial, that was calculated to misdirect them in its exercise.

The motion is therefore dismissed.

O’Neall, Wardlaw, Withers, Whitner, and Glover, JJ., concurred.

Motion dismissed.  