¶1delivered the opinion of the court.
¶2It was error to admit the testimony as to what the deceased said on the day after the whipping as to the cause of the pain in the head. Field v. The State, 57 Miss. 474.
¶3The ninth instruction for the State should not have been given. The jury should have decided the case upon the testimony before them, without reference to what the wife of appellant might have-testified if she had been called as a witness. The fact that she was not called, was not a legitimate subject of discussion by counsel, or of consideration by the jury. It is true, that generally unfavorable inferences may be indulged against a party who fails to produce material and necessary testimony which is within his power and control, but this rule has never been applied to cases where the law, on grounds of public policy, has established privileges against being compelled to produce it. Knowles v. The People, 15 Mich. 408.
¶4It is well settled that where a party avails of his privilege to refuse to answer a question on the ground that the answer might criminate him, or fails to testify in his own behalf, no presumption to his prejudice is to be drawn on this account. Newcomb v. The State, 37 Miss. 383; 1 Greenlf. Ev., §§ 451-460; 1 Whart. Cr. L., § 782.
¶5Under our statute it was the privilege- of appellant to introduce his wife as a witness or not, as he might determine. He was not required by law to introduce her as a witness, and the State could not have done so. The statute does not contemplate or countenance such result as that husband and wife shall, directly or indirectly, be coerced by others into the witness-box. The sanctities of the marital relation cannot be exposed to public scrutiny, in a case like the one before us, without the consent of the husband and wife. If, for any reason, they decline to testify for each other, their decision is final and their motives should not be questioned.
¶6*317If the failure of the husband to call his wife as a witness in his behalf is to be construed as testimony, or as a circumstance against him, his privilege and option in the matter would be annulled, and he would be compelled, in all cases, to introduce her, or run the hazard of being convicted on a constrained, implied confession or admission, or to make explanations for not introducing her which might involve the sacred privacy of domestic life.
¶7Reversed.