Opinion
No. 41978.
December 4, 1961.
1. Criminal law — witnesses — husband and wife — res gestae — statement made by defendant's wife to defendant properly admitted.
Statement made by defendant's wife to defendant when officers raided the defendant's home that defendant should break jug and bottles of beer was part of "res gestae", and evidence thereof was properly admitted in prosecution for possession of intoxicating liquor.
2. Witnesses — statutes — incompetency of wife as witness against husband — testimony as to statement made by defendant's wife to defendant admitted as part of res gestae.
Statute rendering wife incompetent to testify against husband did not render inadmissible, in prosecution for possession of intoxicating liquor, testimony of deputy sheriff that when officers raided the defendant's home, defendant's wife told defendant to break jug and bottles of beer. Sec. 1689, Code 1942.
3. Criminal law — witnesses — res gestae — competency of declarant as a witness not essential.
Competency of declarant is not essential prerequisite to proof of his declarations as part of res gestae.
4. Criminal law — witnesses — husband and wife — res gestae — declarations by one spouse admissible against other when part of res gestae.
Declarations made by one spouse, who is incompetent to testify against other, are admissible against other when part of res gestae.
Headnotes as approved by Gillespie, J.
APPEAL from the Circuit Court of Neshoba County; O.H. BARNETT, J.
Laurel G. Weir, Philadelphia, for appellant.
I. The Court erred in permitting the State's witnesses to testify over objection of appellant as to statements made by appellant's wife. Gunter v. Reeves, 198 Miss. 31, 21 So.2d 468; Pearson v. State, 97 Miss. 841, 53 So. 689; Smith v. State, 193 Miss. 474, 10 So.2d 352; Sec. 1689, Code 1942.
II. The Court erred in overruling each and every objection made by appellant to evidence offered by the State, and in sustaining each and every objection made by the State to evidence offered by appellant as shown by the record.
III. The Court erred in overruling appellant's motion for a directed verdict and in refusing the instructions refused appellant as shown by the record and in overruling appellant's motion for a new trial.
IV. The judgment of the Circuit Court does not recite that the trial jury was duly sworn, and this constitutes reversible error.
G. Garland Lyell, Jr., Asst. Atty. Gen., Jackson, for appellee.
I. The statements made by appellant's wife. Barnes v. State, 164 Miss. 126, 143 So. 475; Musselwhite v. State, 212 Miss. 526, 54 So.2d 911; Spivey v. State, 212 Miss. 648, 55 So.2d 404; Whitney National Bank v. Sterling, 177 Miss. 325, 170 So. 692; Sec. 1689, Code 1942.
II. The State's evidence with respect to the beer. Anderson v. State, 171 Miss. 41, 156 So. 645; Bangren v. State, 198 Miss. 359, 22 So.2d 360; Kimbrall v. State, 178 Miss. 701, 174 So. 47; May v. State, 205 Miss. 295, 38 So.2d 726; Tanner v. State, 216 Miss. 150, 61 So.2d 781.
III. The testimony of the searching and arresting officers was positive that some of the beverage which defendant had in the bathroom was moonshine whiskey. Furthermore, there is no denying that the one-half pint found in the garage was moonshine whiskey. While appellant denied possession of any whiskey and claimed that someone had planted the one-half pint to frame him, this presents a jury question which could be resolved only by the jury.
IV. The failure of the record to recite that the jury was duly sworn. Alexander v. State (Miss.), 22 So. 871; Brown v. State, 173 Miss. 542, 161 So. 465; Pierce v. Tate, 27 Miss. 283; Waddell v. Magee, 53 Miss. 687.
Appellant appeals from a conviction of possession of intoxicating liquor.
The sheriff, a deputy, and the jailor went to appellant's home armed with a search warrant. When they entered the house appellant was in the bathroom breaking a gallon jug and some quart bottles of beer, the contents of which went down the drain. A search of the garage resulted in one of the officers finding a half pint of moonshine liquor.
(Hn 1) Appellant assigns as error the admission of a statement attributed to the wife of appellant, allegedly made by her as the officers were entering the house. Deputy Sheriff Rainey testified that when they went to appellant's door, appellant's wife latched the screen and tried to shut the wood door, and that the sheriff pushed on in, and appellant's wife then screamed, "Break it." The sheriff went to the kitchen and the deputy to the bathroom where appellant was breaking a jug and bottles in the bathtub. The proof showed that there was a great deal of excitement from the time the officers arrived until all the bottles were broken. At one time there were four people, appellant, his wife, and two officers, in the bathroom struggling over possession of one of the bottles. Several sustained cuts from broken glass. The proof showed that appellant was in the house when his wife screamed, "Break it." The appellant admitted breaking the bottles of beer.
(Hn 2) The wife was incompetent to testify against appellant, her husband. Section 1689, Mississippi Code of 1942. But the wife was not called to testify against the appellant and the statement of the wife was a part of the res gestae. Therefore, the statute rendering the wife incompetent to testify against her husband does not make inadmissible the testimony of the deputy sheriff of such declarations on the part of the wife. (Hn 3) The competency of the declarant is not an essential prerequisite to proof of his declarations as a part of the res gestae. (Hn 4) Declarations made by one spouse, incompetent to testify against the other, are admissible against the other when part of the res gestae. 20 Am. Jur., Evidence, Sec. 678, p. 574; Underhill's Criminal Evidence, 5th Ed., Vol. 2, Par. 342, p. 874; Wharton's Criminal Evidence, 12th ed., Vol. 1, par. 283.
The case of Davis v. State, 157 Miss. 669, 128 So. 886, casts some doubt on whether the rule next above stated has been followed by this Court. The declaration of the husband in the Davis case was made after the transaction was completed, the appellant disarmed, and going away. It therefore appears that the statement in that case was not a part of the res gestae. We, therefore, hold that the statement made in the court's opinion to the effect that the testimony was incompetent even if a part of the res gestae, was dicta.
We have considered the other cases relied on by appellant, none of which control the present case.
We have carefully considered the several other points vigorously argued by appellant and find no reversible error.
Affirmed.
McGehee, C.J., and Kyle, McElroy and Jones, JJ., concur.