Summary
In State v. McMullins, 156 Miss. 663, 126 So. 662, where the estranged wife was charged with arson in connection with the burning of a building belonging to her husband, it was held that the husband was not a competent witness against his wife.
Summary of this case from Outlaw v. StateOpinion
No. 28551.
March 3, 1930.
1. WITNESSES. Neither spouse could testify against other at common law, except in prosecution for personal violence.
At common law, a husband or wife was incompetent to testify against the other spouse except in criminal prosecution for personal violence in the nature of assault and battery and like offenses; this was an exception to the general rule making them incompetent, and the exceptions were ingrafted as a matter of necessity for the protection of the person of the husband or wife.
2. WITNESSES. Statute held not to render husband competent witness against wife in prosecution for offense not against person, though parties live apart undivorced ( Laws 1928, chapter 35, amending Code 1906, section 1916).
Chapter 35, Laws of 1928, enlarges the common law as to controversies between husband and wife, making them competent against each other in such suits between themselves in civil as well as criminal cases, but does not render the husband a competent witness against the wife in a criminal prosecution not against the person, although the husband and wife are living apart, but are not divorced.
3. WITNESSES. Wife's burning of house in which husband, separated from her, lived, held not "assault" on husband so as to make him competent witness against her in arson prosecution ( Code 1906, section 1916, as amended by Laws 1928, chapter 35).
The offense of burning a house in which a man lives is not an assault, upon him or an injury to his person, but is an injury to his property; and the destruction, by a wife, of property belonging to a husband, is not an injury to his person so as to make him a competent witness against her.
APPEAL from circuit court of Lowndes county. HON. J.I. STURDIVANT, Judge.
B.F. Bell, of Starkville, for appellant.
A husband and wife may testify against each other in cases as assault and battery, or any case where the one does, or attempts to do, violence to the person of the other. It makes no difference by what name an offense may be called, nor by what means or instrumentality an act calculated in contemplation of law to do serious harm or inflict death upon the husband or wife by the other, the same principle would apply, although the crime may be known by name of arson, and the instrumentality used is fire.
Section 1916, Code of 1906.
Forrest B. Jackson, Assistant Attorney-General, for the State.
Communications between husband and wife when they are not living as such but are separated having severed the marital tie for all practical purposes cannot ordinarily be regarded as confidential and are not privileged.
28 R.C.L., page 521, secs. 113-114; 39 L.R.A. (N.S.) 318; Chapter 35, Laws of 1928; Hesdorfer v. Hiller, 111 Miss. 16, 71 So. 166, Ann. Cas. 1918E, 191; Byrd v. State, 57 Miss. 243, 34 Am. Rep. 440; Turner v. State, 60 Miss. 351, 45 Am. Rep. 412; Finklea v. State, 94 Miss. 777, 48 So. 1; McRae v. State, 104 Miss. 861, 61 So. 977; Whitehead v. Kirk, 104 Miss. 776, 61 So. 737, 62 So. 432, 51 L.R.A. (N.S.) 187; McQueen v. State, 139 Miss. 457, 104 So. 168; Spencer v. O'Bryant, 140 Miss. 474, 106 So. 6; 1 Blackstone's Commentaries, page 443; 2 Wigmore on Evidence (2 Ed.), sec. 2239; Wharton — Criminal Evidence (9 Ed.), p. 326; 2 Bishop's New Criminal Procedure, p. 981, sec. 1151; Smith v. State, 152 N.E. 805; Soule's Case, 5 Greenl. 407, 408.
Malice must necessarily be against some person, and was evidently against the husband. It was the same ingredient that would be contained within a charge of assault and battery with intent to kill.
Jesse v. State, 28 Miss. 100.
The appellee, Sarah McMullins, was indicted for the crime of arson. She was charged with burning a building belonging to her husband and usually occupied by him at night.
Sarah McMullins and her husband had separated and were living in different houses, but had not been divorced. The state sought to introduce the husband as a witness against the appellee, and to prove by him certain statements made by Sarah McMullins in reference to the burning, with the view of making out a case against the defendant. The court refused to permit this testimony to be introduced, and the state appeals from the verdict of acquittal for the purpose of having the question of competency of the husband as a witness against the wife where they are separated and not living together settled.
The common law did not permit a husband, or wife, to testify against each other in any suit, except in criminal prosecutions for personal violence in the nature of assault and battery and like offenses; this was an exception to the general rule making them incompetent. Such exceptions were ingrafted as a matter of necessity for the protection of the person. The present statute, chapter 35, Laws of 1928, amends section 1916 of the Code of 1906, and permits a husband, or a wife, to testify against the other in controversies between them, but in other cases leaves the law as it existed at the common law. In McQueen v. State, 139 Miss. 457, 104 So. 168, we held: "Under the common law one spouse could not be introduced to establish a crime against the other, except where the crime, such as assault and battery or like offense, was committed against the other spouse." In that case the state introduced the wife of the defendant for the purpose of proving the marriage between the husband and wife in the prosecution for bigamy growing out of a second marriage celebrated in due form. We held that she was incompetent to testify to such fact, and that a criminal prosecution was not a controversy between the husband and wife within the meaning of section 1916 of the Code of 1906.
In the recent case of Alonzo Doss v. State, 126 So. 197, we held that a wife was incompetent to testify against the husband on a charge of rape committed upon her before the marriage, but that the law limited her competency as a witness in a criminal prosecution to offenses committed upon her during the marriage relation and committed against her as wife by the husband.
We are of the opinion that it is not an offense against the husband in the nature of an assault upon him to destroy his property by burning or otherwise. An injury, or destruction, of property is not an injury to the person but an injury to the property and property rights, and distinguished from person and personal rights. The court therefore rightfully excluded the evidence, and the judgment will be affirmed.
Affirmed.