Neither the husband nor the wife is a competent witness to testify for or against the other in any criminal cause, in the absence of a statute rendering them competent. By the common law they are but one person.63 Nor can their incompetency in this respect be waived.64

But it is only where there has been a valid marriage that the husband and wife are thus rendered incompetent;65 the only test is are they husband and wife.66

60 Ill . Const., Art. 2, Sec. 10; U. S.

Const., 5th Amend. 61 Harwell vs. State, 10 Lea (Tenn.), 544; Whelchell vs. State, 23

Ind., 89. 62 Bartholomew vs. People, 104 Ill., 607; People vs. Rodrigo, 69

Cal., 601.

63 Creed vs. People, 81 Ill, 568;

1 Greenl. Ev., Sec. 334. 64 Barber vs. People, 203 Ill., 543;

Graff vs. People, 208 Ill., 312. 65 Hoch vs. People, 219 Ill., 278. 66 Rickerstriker vs. State, 31 Ark., 208.

To this rule there are exceptions. If the one commits an offense against the other, the one assaulted becomes a competent witness against the other. Thus if the husband commits an assault and battery upon his wife, she is a competent witness against him.67