
    Commonwealth v. Lopaze
    
      
      Robert F. Banks, Assistant District Attorney, for Commonwealth.
    
      Michael J. Wherry, for defendant.
    November 26, 1968.
   Stranahan, P. J.,

This matter comes before the court on a motion by defendant to quash the indictment.

Defendant has been arrested on a charge of forgery. The arrest was the result of an information filed against him by Margaret Lopaze, his wife, which information charged him with forging three checks on the account of Margaret Lopaze, in the total amount of $80.

A bill of indictment was submitted to the grand jury, and the counts in the indictment which consisted of three counts of forgery were approved by the grand jury. The bill of indictment indicates that Margaret Lopaze was the sole witness called by the Commonwealth to appear before the grand jury.

Defendant contends that under the circumstances of this crime a wife cannot testify against her husband, and therefore since Margaret Lopaze was the only witness the indictment must be quashed.

The Act of May 23, 1887, P. L. 158, sec. 2 (b), its amendments and supplements; 19 PS S683, provides in part as follows:

“Nor shall husband and wife be competent or permitted to testify against each other, . . .”

This ruling works an injustice in a situation where the wife has a separate estate and the husband through forgery obtains funds that belong to the wife; yet the fact remains that the statute is clear and cannot be disregarded by this court.

We therefore rule that the indictment must be quashed.

0rder

And now, November 26, 1968, it is ordered that the indictment charging defendant with forgery at the above number and term is quashed.  