WILLIAM H. EVERETT AND MADISON EVERETT, PLAINTIFFS IN ERROR,

v.

THE STATE OF FLORIDA, DEFENDANT IN ERROR

Mabky, J.:

The plaintiffs in error were jointly indicted in May,. A. D. 1893, for the murder of J. Fletcher Tillman, and after arraignment and trial William H. Everett was convicted of murder in the first degree and recommended to the mercy of the court, and Madison. Everett was convicted of murder in the third degree.

William H. is indicted as principal in the first degree, and Madison as being feloniously present aiding, inciting, abetting and assisting the commission of the murder. One of the assignments of error here is that “the-court erred in admitting, over the objections of the-defendants’ counsel, any testimony against Madison Everett under the indictment, he being charged as-principal by being feloniously present aiding, abetting, inciting and assisting, it not being charged or alleged how he aided, abetted, incited and assisted.” After-the usual formal allegations in indictments for murder, the one here charges that William H. Everett and Madison Everett, on a certain day and year, in the-county and circuit mentioned, “with force and arms at and in the county of Alachua aforesaid did, without authority of law, wilfully, felonio.usly, of their máliceaforethought and from a premeditated design to effect the death of one J. Fletcher Tillman, make an assault' upon the said J. Fletcher Tillman, and a certain pistol which then and there was loaded with gunpowder and leaden bullets, and by him, the said William EL Everett, had and held in his hand, he the said William H. Everett did then and there unlawfully, wilfully,, feloniously, of his malice aforethought, and from ai premeditated design to effect the death of the said J.. Fletcher Tillman, shoot off and discharge at and upon: the said J. Fletcher Tillman, thereby and by thus, striking the said J. Fletcher Tillman with two-of the* leaden bullets aforesaid, inflicting on and in the head of’ him the said J. Fletcher Tillman, two mortal wounds, of' which said two mortal wounds the said J. Fletcher Tillman then and there instantly died; and that the said Madison Everett at the time and place of the commission, of the said murder, and felony aforesaid, was feloniously present then and there aiding, inciting, abetting and assisting the said William EL Everett the said murder and,; felony to do and commit; and so the said William EL. Everett and the said Madison Everett did, in manner-and form aforesaid, without authority of law, wilfully, feloniously, of their malice aforethought, andi from a premeditated design to effect the death of the-.said J. Fletcher Tillman, kill and murder the said J.. Fletcher Tillman.” No attack was made on the indictment before trial, and the objection urged, under-the assignment of error mentioned, is not to any designated part of the evidence introduced by the State-against Madison Everett, but it is contended that no-testimony of any kind should have been admitted-against him, because the indictment does-not allege-how he aided, abetted, incited and assisted in the commission of the offense. The manner in which the killing was effected by William H. Everett, it will be seei& :from the part of the indictment copied, is alleged, and Madison Everett, it is charged, was feloniously pres- • ent aiding, assisting and abetting in the commission -of the felony. The defendant, Madison Everett, plead to this indictment and went to trial on it, and we think 'it is entirely sufficient to authorize the admission -against him of all competent evidence bearing on the •case.

.Another assignment of error discussed by counsel for plaintiffs in error is that “the court erred in allowing 'the wife of William H. Everett, defendant, to testify '•against him.” After the testimony for the State in chief had been introduced and the defendants had made voluntary statements in their behalf to the jury, .Mrs. Ellen Everett, wife of the defendant William H. Everett, was called as a witness on the part of the State to testify in rebuttal of the statement made by .•her husband. An objection was made harmony with each other, it seems to us that this is the-proper way to construe them. Potter’sDwarris on Statutes, pages 189 and 190. Applying this rule of construction to Section 2863 in connection with Chapter 4029, act", of 1891, the rule as to the competency of husband and. wife to testify for or against each other in civil cases.; as well as to the competency of witnesses in other civill cases, will apply also to criminal trials. Such we-think is the effect of the legislation on the subject, and'we can not say that the Legislature did not intend such.a result. Prom this it follows that the Circuit Judge-did not err in permitting Mrs. Everett to testify in the-case. It may be observed that the relation of husband, and wife was always an additional disability to, testify for or against each other in any case, and that the removal of the disability of interest would-not of itself permit them to testify for or against each, other. It is also argued here by counsel for plaintiffs in-error that the testimony does not sustain the conviction against either of them. This contention can not be sustained on this record. An examination of it leaves no room for doubt as to its sufficiency to sustains the verdict.

There are many other assignments of error here, but,: they are not alluded to in the brief of counsel for plaintiffs in error, and hence are abandoned.

The judgment is affirmed, and an order will be entered; accordingly.

ÍRaney, C.-J.,

dissenting:

T am unable to concur in the conclusion of the i majority of the court as to the competency of the [...]wife of William H. Everett to testify against her husi band.

' The Revised Statutes, as the same were adopted by 'the Legislature, contained the following provisions:

Section 1094. Married persons shall be competent witnesses for or against each other in civil cases -wherein either of them is a party and is allowed to testify. See original in the office of the Secretary of tState.

: Section 1095. No person in any court or before any ' officer acting judicially shall be excluded from testifying as a witness by reason of his interest in the event • of the action or because he is a party thereto. Thére are certain limitations as to an interested party testifying concerning transactions or communications •with deceased persons, which it is not necessary to ..notice here.

The above provisions are under the head: Competency of witnesses,' in Chapter 15 of the Second Divis'don of the revision, which Division is entitled: Second Division. Of Civil Courts—-Their Organization and Proceedings Therein.

In the Fifth Division, entitled: Crimes and Procedure, Chapter 7, entitled Witness, it is provided: Section 2863. The .provisions of law relative to the competency of witnesses in civil cases shall obtain also in criminal cases.

In the same division is: Section 2908. In all criminal prosecutions the accused shall have the right of -making a statement to the jury, únder oath, of the .matter or his or her defense. The act approved June 8th,- 1891, Chapter 4055, adopting the Revised Statutes with specified omissions from,'alterations of and additions thereto, and providing for such revision to become operative on the 30th day after the Governor’s proclamation announcing the publication thereof, repeals every statute of a general and permanent nature, in so far as the same or any part thereof is not included in such revision or recognized and continued in force by reference therein. This adopting statute also enacts as follows: Statutes passed at this session of the Legislature shall not be repealed or affected by said revision, but shall have full effect as if passed after the enactment of said revision, except those acts passed at this session which are amendatory of laws omitted from the said revision.

Among the acts passed at the mentioned session of the Legislature is Chapter 4029, approved June 4th, 1891, entitled: An act to amend Chapter 3124 of the laws of Florida, so as to authorize both husband and wife to testify in civil actions in which either may be interested. It amends the act referred to, and more fully designated in its body, so that it shall read as follows: That in the trial of civil actions in this State neither the husband nor the wife shall be excluded as witnesses where either the said husband or wife is an interested party to the suit pending.

The act so amended, Chapter 3124 approved March 7th, 1879, reads as follows: In the trial of civil actions in this State married women shall not be excluded as witnesses in cases wherein their husbands are parties and allowed to testify.

Another act passed in 1891 was Chapter 4036, approved June 5th, 1891, to the effect: That atheists, ag nostics and all persons who do not believe in the doc trine of future rewards and punishments, shall be permitted to testify in any of the courts of this State; and they may solemnly affirm, instead of taking an oath, and false testimony by said persons shall be perjury as-in cases of other witnesses, and shall be punished as-now provided by law.

The question for decision is whether or not a wife is a competent witness against her husband on the trial of the latter upon a criminal charge. In treating this question we are to concede that the Legislature of 1891,-when enacting the adopting act, Chapter 4055, supra, was familiar with each and every provision of the Revised Statutes. It knew of course that in adopting the revision it was enacting a system of laws which, as such system or revision, would not become operative-until the commissioners should “as soon as possible after the adjournment of the Legislature amend the Revised Statutes as submitted by them so as to incorporate with the body of the text the amendments made by tMs act' ’ (Chapter 4055), and prefix indexed copies of the Constitution of the United States and the State and of the sections of Chapter 4055 adopting such revision, and add an appendix containing the acts of the session of 1891 of a general and permanent nature, and the same-should be printed under the supervision of such commissioners, nor until the thirtieth day after an Executive Proclamation announcing such publication had been issued (secs. 2, 9, 10, Chapter 4055).

Providing-as it did in the first section of the adopting act that-every statute of a general and permanent nature enacted by the State or Territory, and every part of such statute not included in such revision, or recognized and continued in force by reference therein, should be-repealed by such revision when it becomes operative —which provision referred to statutes passed prior to-the then existing session of the Legislature—the lawmaking power found it necessary to form and declare its will as to the effect which the Revised Statutes should, when they came into effect, have upon the legislation of the session of 1891. The expression of this will is to be found in the last clauses of the first of the preceding paragraphs in which the adopting act (Chapter 4055) is mentioned. The meaning of this clause, omitting its exception as irrelevant here, is the same as if it were expressed as follows: “Statutes passed at this session of the Legislature shall not be repealed or affected by the revision upon its becoming operative, but shall have full effect as if passed after such revision had become operative.” The rewision could have no effect upon other laws until it became operative. Sammis vs. Bennett, 32 Fla., 458, 14 South. Rep., 90. The purpose of the Legislature then was that the act of June 4th, 1891, Chapter 40.29, should not be repealed or affected by the Revised Statutes upon their becoming opei'ative, but have full effect as if passed after they had become operative. In other words, as between the Revised Statutes and the last mentioned act, the latter is to be taken as the latest expression of the legislative will upon the subject to which it related, and is to control any contrary •expression to be found on the same subject in the revision. What is the expression on the subject of husband and wife testifying for or against each other, to be found in the revision? It is that to be found in Sections 1094 and 2863, sicpra. The former of these Sections is that married persons shall be competent witnesses for of against each other in civil cases wherein •either of them is a party and allowed to testify. The latter section providing that the provisions of law relative to the competency of.witnesses in civil cases shall obtain also in criminal cases, was not intended to render the wife or husband a competent witness in a criminal cause to which the other was a party, and for the reason that a defendant in a criminal case-was not “allowed to testify,” within the meaning of this expression as used in Section 1094; but the purpose of the revision was that such defendant should have only the right to make a statement under Section 2908, supra. Steele vs. State, 33 Fla., 348, 14 South. Rep., 841.

Section 1094 did not of itself or with the aid of Section 2863, or of any other part of the revision confer any competency on the husband or wife as witnesses in criminal cases. Treating the revision as existing law at the time of • the enactment of the statute of 1891, as we must do to ascertain the legislative intent, we find that it did not authorize the wife to-testify against the husband in criminal cases. What then is the effect of. the statute of June 4th, 1891, supra, enacting that in the trial of civil actions in this State neither the husband nor the wife shall be excluded as witnesses where either the said husband or wife is an interested party to the suit pending? With reference to the legislative intention it is to be viewed in two aspects. As an amendment of the act of 1879, Chapter 3124, supra, to operate until the Revised Statutes should become of force, it was to extend to the husband the same competency as to the wife, and relieve the competency of both from the limitation to-which the act of 1879 subjected the wife’s competency, viz: That the one who was a party or interested in the suit must be competent to testify (Haworth vs. Norris, 28 Fla., 763, 10 South. Rep., 18); but of course, and as is apparent from the terms of the act of 1879,, the intent to confine such increased and extended competency to civil cases is unquestionable. As the ex pression of the legislative intent in connection withj the Bevised Statutes when they should become operative, it shows no other purpose than to modify Section-1094 by removing the limitation of the one who-is a-party to the civil case being allowed to testify. As-a subsequent expression of legislative will it is confined expressly to civil cases, and thereby purposely • excludes criminal cases.

Section 2863 did not extend Sectib'n 1094 to criminal cases, and the statute in question, Chapter 4029, viewed with reference to its effect-, upon the Bevised Statutes, must be construed upom the assumption that the Legislature was cognizant of' this feature of the revision. Knowing that under the-revision as it was framed and was to be printed, the. husband and wife could not be witnesses for or against-each other in criminal cases, the act last mentioned shows an express intent to confine its provisions to civil cases, and precludes the inference that Section 2863. should extend its provisions to criminal cases. Its purpose was to confine it to civil cases not withstand-, ing Section 2863; it has so declared and such declaration is a limitation on Section 2863, as well as a preservation of the like limitation of Section' 1094.

Section.. 2863 is of course not a limitation on legislative power-to so limit its effect. It was not the intention of the-Legislature that Chapter 4029 should be published as-; a part of the revision, or as a substitute for Section.. 1094; nor is the last named section one o'f those which were omitted, changed, or added to by the adopting-act, but it is one which was retained in the compilation-; as reported, and was as much a part of the revision-when viewed in connection with the effect of Chapter-4029, as any other section of that compilation; and though it never became law in fact, it was as much within the contemplation of the Legislature when it. 'passed Chapter 4029 as was Section 2863, or any other part of the revision. Chapter 4029 was enacted in so 7far as it was to affect the revision with a view to the effect of that revision, with Section 1094 as a part of .it, and not simply with reference to Section 2863, and 'its sole purpose as to the revision was to remove in [...]civil cases the limitation to competency which was implied by the words “and is allowed to testify.” The intent to extend the competency of the wife or husTrand as witnesses for or against each other to criminal •cases, is excluded by the terms of the act of 1891. It is true that Section 1094 never became law, but it is no less true that it is a part of the revision as acted upon T>y the Legislature in enacting the act of 1891, Chapter 3124; this is clearly shown by the provisions of Sections 5, 6, and 7, the one for omissions, the second for alterations, and the third for additions, to be made .from, of and to the revision as it was presented by the commissioners, and by Sections 9 and 10 providing 'that the revision, as thus changed and not otherwise, , should be printed as the Revised Statutes. It was as much the subject of their action as if it had become law and the act of 1879 had been subsequently enacted. "The omission of Section 1094 from the publication may -he attributed to the fact that the compilers thought it 'would be of no further practical use as it never became .Saw; but they, have not substituted Chapter; 4029 in its place, and for the reason that it was no£ enacted as ¡¡such and is not to be found in the adopting act.

Section 1094, as it remained in the revision after the "passage of the adopting act, is an essential part of the Revised Statutes as the subject upon which Chapter >4029 was to act and was enacted with reference to; and 'the Revised Statutes as containing Sections 1094 and :-and 2863 are to be regarded in ascertaining the effect •of Chapter 4029 upon such revision and the intent of the Legislature in enacting such chapter, the same as if the revision had been in force at the time of enactment of such act of 1879. The intent of the Legislature to confine this to civil cases is further shown by a consideration of Chapter 4036, supra, which also was passed in 1891. In it there is no limitation to civil cases, and as an expression of the legislative will it acted upon the provisions of the revision as to witnesses in both civil and criminal cases; but had it contained, as does the other act of the same year, the words “in the trial of civil actions,” there would be no doubt that it would not include criminal cases. It, like Chapter 4029, was not intended as a part of the revision, but as a subsequent law enacted with reference to the revision as if the latter had been existing law.

For these reasons, and without expressing an opinion on any other point involved in the case, except to concur as to the sufficiency of the indictment, I think the judgment of the Circuit Court should be reversed on account of having permitted the wife of the plaintiff in error, William H. Everett, to testify against him.