966 EVIDENCE. [ART. 35

where testimony is excepted to. Smith v. Humphreys, 104 Md. 289. And as
to the practice in excepting to testimony, see Russell v. Carman, 114 Md. 35;
Worthington v. Worthington, 112 Md. 140; Brewer v. Bowersox, 92 Md. 576.
As to the history of this section, see also Robertson v. Mowell, 66 Md. 533.

The act of 1902, ch. 495 (re-enacting this section), omitted the provision
which rendered an original party to a contract an incompetent witness, the
other party being dead. Hence, since that act, such disqualification is
removed. Gittings v. Winter, 101 Md. 205; Justis v. Justis, 99 Md. 81; St.
Mark's Church v. Miller, 99 Md. 29; Duckworth v. Duckworth, 98 Md. 98.
And see Eareckson v. Rogers, 112 Md. 168.

The proviso at the end of this section, applied. Parties held competent
under the act of 1902, ch. 495. Lawson v. Mullinix, 104 Md. 171.

For cases applying and construing the portion of this section which, prior
to the act of 1902, ch. 495, disqualified a party to a contract or cause of
action from testifying where the other party was dead, lunatic, or insane, or
when an executor or administrator was a party to the suit, unless a nomi-
nal party merely, see Polk v. Clark, 92 Md. 373; Wienecke v. Arbin, 88 Md.
185; Flach v. Gottschalk Co., 88 Md. 377; Warth v. Brafman, 85 Md. 675;
Bowie v. Bowie, 77 Md. 312; Biggs v. McCurley, 76 Md. 411; Webster v. Le
Compte, 74 Md. 261; Scott v. Amoss, 73 Md. 83; Gunther v. Bennett, 72 Md.
386; South Baltimore, etc., Co. v. Muhlbach, 69 Md. 401; Canton v. McGraw,
67 Md. 586; Robertson v. Mowell, 66 Md. 532; Grand United Order, etc., v.
Merklln, 65 Md. 583; Neale v. Hermanns, 65 Md. 478; Horner v. Frazier, 65
Md. 10; Love v. Dilley, 64 Md. 242; Trahern v. Colburn, 63 Md. 104; Owens
v. Crow, 62 Md. 497; Dilley v. Love, 61 Md. 607; Diffenbach v. Vogeler, 61
Md. 378; Swartz v. Chickering, 58 Md. 295; Kerby v. Kerby, 57 Md. 359;
Simmons v. Haas, 56 Md. 165; Spencer v. Almoney, 56 Md. 561; Bantz v.
Bantz, 52 Md. 691; Sangston v. Hack, 52 Md. 201; Hardy v. Chesapeake
Bank, 51 Md. 596; Wright v. Gilbert, 51 Md. 155; Standford v. Horwitz, 49
Md. 529; First National Bank v. Eccleston, 48 Md. 157 (cf. dissenting opin-
ion, p. 164); Orendorff v. Utz, 48 Md. 304; Graves v. Spedden, 46 Md. 538;
Lyon v. George, 44 Md. 299; Spencer v. Trafford, 42 Md. 17; McKaig v. Hebb,
42 Md. 231; Sanborn v. Lang, 41 Md. 115; Murray v. Cannon, 41 Md. 475;
Pairo v. VIckery, 37 Md. 488; Downes v. Maryland and Delaware R. R. Co.,
37 Md. 104; Jones v. Jones, 36 Md. 457; Leiter v. Grimes, 35 Md. 438; Miller
v. Motter, 35 Md. 432; McKaig v. Piatt, 34 Md. 259; Billingslea v. Ward, 33
Md. 53; Johnson v. Heald, 33 Md. 368; Schull v. Murray, 32 Md. 17; Cannon
v. Crook, 32 Md. 486; Smith v. Wood, 31 Md. 296; Williams v. Higgins, 30
Md. 407; Cooke v. Cooke, 29 Md. 550; Neidig v. Whiteford, 29 Md. 184.

This section referred to in construing sections 1 and 4—see notes thereto.
Turpin v. State, 55 Md. 475. And see Davis v. State, 38 Md. 57 (dissenting
opinion).

Cited but not construed in Schley v. Merrltt, 37 Md. 358; Taylor v. Hill, 36
Md. 501.

1904, art. 35, sec. 4. 1888, art. 35, sec, 3. 1860, art. 37, sec. 3. 1864, ch. 109, sec. 3.
1876, ch. 357. 1888, ch. 545.

4. In the trial of all indictments, complaints and other proceedings
against persons charged with the commission of crimes and offenses.
and in all proceedings in the nature of criminal proceedings in any
court of this State, and before a justice of the pe'ace or other officer
acting judicially, the person so charged shall at his own request, but
not otherwise, be deemed a competent witness; but the neglect or refusal
of any such person to testify shall not create any presumption against
him. In all criminal proceedings the husband or wife of the accused
party shall be competent to testify; but in no case, civil or criminal,
shall any husband or wife be competent to disclose any confidential
communication made by the one to the other during the marriage; and
in suits, actions, bills or other proceedings instituted in consequence of
adultery, or for the purpose of obtaining a divorce, or for damages for