State v. Jaques

(concurring specialty)-

I concur in the opinion of Justice Morgan. The South Dakota statutes preceding SDCL 19-2-1 have been interpreted as making a spouse incompetent as a witness unless the other spouse consents to such testimony. State v. Burt, 1903, 17 S.D. 7, 94 N.W. 409; State v. Damm, 1933, 62 S.D. 123, 252 N.W. 7; State v. Goff, 1936, 64 S.D. 80, 264 N.W. 665. See also, United States v. Crow Dog, 1882, 3 Dak. 106, 14 N.W. 437.

It is surprising that in spite of the criticism of spousal incompetency by Wigmore & McCormick (and Bentham long before them) that it survives and was reaffirmed…