¶1delivered the opinion of the court.
¶2Appellant, Sarah J. Turnbull, and William Brown, being jointly indicted and tried for the crime of willful and malicious cutting and wounding her husband, Melvin Turnbull, *496she was, by the verdict of the jury, found guilty, and her punishment affixed at confinement in the penitentiary for the term of one year, and judgment against her was accordingly rendered. •
¶3She has appealed from that judgment, and complains of an error of the coürt below in permitting her husband to testify as a witness upon the trial against her.
¶4It is not necessary that the error of the court in admitting incompetent testimony be relied upon in a motion for new trial in order to enable the accused to avail herself of that error upon appeal. (Johnson v. Commonwealth, 9 Bush, 228.)
¶5By section 24, chapter 37, title "Evidence,” General Statutes, it is enacted 1 ‘ that neither husband nor wife shall be competent for or "against each other, or concerning any communication made by one to the other during marriage, whether called while the relation subsists or afterwards,” &c.
¶6There is nothing to indicate that chapter 37 was intended by the legislature to apply exclusively to civil actions and proceedings; nor can section 24 by its terms be so confined in its application.
¶7The court, therefore, in permitting her husband to testify against her, erred to the prejudice of appellant, and the judgment of conviction must be reversed, and the cause remanded, with directions to grant her a new trial, and for other proceedings consistent with this opinion.