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| . ry wt SUPREME COURT OF THE UNITED STATES. No. 394.—OcToper Term, 1933. John 8. Funk, Petitioner, | On Writ of Certiorari to the vs i United States Circuit Court The United States of anerea | [December 11, 1933.] of Appeals for the Fourth Cireuit. Mr. Justice SurHERLAND delivered the opinion of the Court. The sole inquiry to be made in this case is whether in a federal court the wife of the defendant on trial for a criminal offense is & competent witness in his behalf. Her competency to testify against him is pot involved. The petitioner was twice tried and convicted in a federal dis- triet court upon an indictment for conspiracy to violate the pro- hibition law. ‘His conviction on the first trial was reversed by the circuit court of appeals upon a ground not material here. 46 F, (2) 417. Upon the second trial, as upon the first, defendant called his wife to testify in his behalf. At both trials she was excluded upon the ground of incompetency. The cireuit court of appeals sustained this ruling upon the first appeal, and also upon the appeal which followed the second trial. 66 F. (2d) 70. We granted certiorari, limited to the question as to what law is ap- plicable to the determination of the competency of the wife of the petitioner as a witness. Both the petitioner and the government, in presenting the case here, put their chief reliance on prior decisions of this court. The government relies on United States v. Reid, 12 How. 361; Logan v. United States, 144 U. 8. 263; Hendrix v. United States, 219 U.S. 79; and Jin Fuey Moy v. United States, 254 U. 8. 189, Petitioner contends that these cases, if not directly contrary to the decisions in Benson v. United States, 146 U. 8. 325, and Rosen v. United States, 245 U. 8. 467, are so in principle. We shall first briefly review these cases, with the exception of the Hendrix case and the Jin FPuey Moy case, which we leave for consideration unti] a lateF point in this opinion.