Opinion
No. 34121.
June 10, 1940.
WITNESSES.
In homicide prosecution, deceased's wife was competent to testify as to what occurred at scene of killing and as to statements made by others or statements made in presence of others bearing on material issues in controversy, since deceased was not a "party to suit" within statute prohibiting either spouse from testifying where either is a party litigant (Code 1930, sec. 1528).
APPEAL from the circuit court of Newton county; HON. PERCY M. LEE, Judge.
J.M. Carr, of Newton, for appellant.
Appellant contends that this cause should be reversed and rendered for the reason that there was not sufficient testimony on which to convict this appellant of any crime whatsoever, or else that the cause should be reversed and remanded on account of the error as made by the lower court in excluding the evidence of the witness, Bessie Nelson.
The objection as made to the admissibility of the evidence of Bessie Nelson was made under Section 1528, Mississippi Code of 1930. The court after hearing the matter argued, held that under the provisions of such section that: "It is well settled that the widow cannot be introduced by anybody, either party in criminal prosecution, except by the state." Look now to the testimony of the witness, Bessie Nelson, as offered after the jury had been excluded. Clearly it appears that her testimony would substantiate the theory of the defendant.
Looking now to the meaning of Section 1528, Mississippi Code of 1930, we find that under the common law neither husband nor wife was competent either for or against each other. By statute this rule was modified into the form as now set forth by such Section 1528, Mississippi Code of 1930.
Under the common law the matter of the admissibility of the husband or wife went to the question of competency. Neither under the common law was competent. Under Section 1528, Mississippi Code of 1930, both are competent but each has the right under such statute to object to the other testifying in certain specified cases. Thus we see the distinction between competency and privilege. Under the common law it was a matter of competency and under our statute it is a matter of privilege.
Now under the holding of the lower court it must be held that the State of Mississippi and John Nelson, deceased, are one and the same person, and that as the husband of Bessie Nelson the State of Mississippi objects to the testimony of said wife. That is absurd, and yet it is the logical conclusion that must be reached under the construction as placed on the statute by the lower court. Clearly this suit was not a suit where John Nelson was a party, and being not a party Section 1528, Mississippi Code of 1930, could not be applicable.
Whitehead v. Kirk, 104 Miss. 776, 61 So. 737, 51 L.R.A. (N.S.) 187, Ann. Cas., 1916A, 1051.
Clearly the testimony offered by the defendant was testimony as to statements, declarations, and conduct of the deceased in the presence of others, because the record clearly shows that present at the time of the utterance of said statements were not only John Nelson and his wife but likewise were present Mary McBride Cox, Theodore McBride, and P.H. Lyle. All of these parties were present and saw and heard what happened on the occasion in question and most certainly it cannot be contended that such statements and conduct were or could be confidential or privileged.
W.D. Conn, Jr., Assistant Attorney-General, for appellee.
The defendant offered as a witness the wife of the deceased. When she undertook to testify, the state objected upon the ground that she was not privileged to testify for the defendant under the provisions of Section 1528, Code of 1930, the same being the privileged communications statute. The testimony of this witness was taken in the absence of the jury, and at the conclusion thereof the court sustained the objection and did now allow her to testify. We think the court was in error in not allowing this witness to testify, since everything she testified about occurred in the presence of other persons. Any conduct or statements of the husband in the presence of other witnesses are not privileged. The wife can testify with reference thereto in a case of this kind.
Carter v. State, 167 Miss. 331, 145 So. 739.
In the case at bar, everything which the defendant undertook to show by the wife was otherwise established by witnesses both for the state and the defendant. There was nothing which they sought to show by her that was not otherwise shown by other witnesses. In this state of case, we think that the ruling of the court with respect to this witness becomes immaterial. This court has often said that in reviewing a case it will determine two things: First, whether error in fact has been committed; and second, if so, whether it was of such nature as that the defendant was prejudiced in the trial of his case.
Comings v. State, 163 Miss. 442, 142 So. 10; Goins v. State, 155 Miss. 662, 124 So. 785.
We do not believe that the court would be justified in reversing and remanding this case for another trial merely to have another jury do what one had already done, and about the only thing that could be done on the evidence contained in this record.
The appellant was indicted in the Circuit Court of Newton County for the murder of one John Nelson, and was convicted of manslaughter and sentenced to serve a term of eight years in the state penitentiary; from which conviction, he appeals.
It appears from the evidence that the appellant, Nelson and others were fighting fire southwest of Lawrence in Newton County, Mississippi; and that he left and went to the home of Nelson nearby, his sister and Nelson's wife being present. Later, Nelson returned home, accompanied by P.H. Lyle, a white man, and they found McBride there playing a guitar. Nelson accosted him about leaving — running away from the fire fighting — words ensued, which was followed by a fight, in which Nelson was struck and his skull fractured, from which wounds he died.
One of the principal witnesses for the State, P.H. Lyle, who was present at the time the fight took place, testified that the appellant struck the deceased at a time when he was unarmed and doing nothing to provoke the assault. The testimony of this witness, corroborated to some extent, was sufficient to secure the conviction. The defendant offered the wife of the deceased as a witness to prove the facts of the difficulty, and also to impeach Lyle's testimony. A statement is said to have been made by Lyle to several persons, who came to the home of the deceased after the difficulty, that it was so dark that he could not see just how it happened. Lyle denied making such statement, and his testimony was impeached by other witnesses. The State objected to the testimony of the deceased's wife on the ground that she was disqualified as a witness. Her testimony was heard by the court in the absence of the jury, and the objection of the State was sustained. The objection of the prosecution to the testimony of the wife was that she was being offered to testify against her husband. After proving that she was the widow of the deceased, in the absence of the jury, the court heard the following testimony:
"Q. Do you remember the occasion when a difficulty between Johnnie Nelson and Theodore McBride took place on a night in December? A. Yes, sir.
"Q. When did you first see Theodore McBride on that night? A. I seed them down there fighting fire that evening.
"Q. I am talking about that night at the house? A. He come to the house after some water.
"Q. Did he stay there? A. Yes, sir.
"Q. What did he do while he was there? A. Picked the guitar.
"Q. Who all was there? A. Me and his sister.
"Q. Now did you see Mr. Lyle when he came there? A. No sir.
"Q. Did you see Johnnie when he came up? A. No, sir, I didn't see Johnnie until he was in the house.
"Q. What if anything happened in the house between Johnnie and Theodore? A. Nothing.
"Q. Was any cursing going on in there? A. No, sir.
"Q. Now what started the difficulty if anything? A. Well Theodore was there in the kitchen and Johnnie asked him how come he didn't stay and help put out fire and he told him that he came after some water.
"Q. All right, what else happened? A. And he told Theodore he slipped off and Theodore told him he didn't slip off he just come after a drink of water and Johnnie turned and went out and Theodore went out too. I was in the kitchen cooking supper, me and his sister.
"Q. What did you see outside of the house? A. I didn't see anything only when I got out there Theodore struck him.
"Q. Did you see a knife there? A. Yes, sir.
"Q. Who had the knife? A. The knife was there where Johnnie was.
"Q. What knife was it, this knife here? A. Yes, sir.
"Q. Did you ever see Johnnie Nelson with that knife before? A. Yes, sir, I know it was his knife because I was the one that got the knife.
"Q. You bought it for Johnnie? A. No, sir, I picked it up.
"Q. Did you see Johnnie with that before? A. Yes, sir.
"Q. You state that this is his knife? A. Yes, sir, that is his knife.
"Q. Did you see a stick of wood there by him? A. Yes, sir, a little split stick of wood there by him.
"Q. Were you there in the house that night when Amos Lyle, Mr. Frank Cox, Mary McBride, J.B. McBride were there? A. Yes, sir.
"Q. State whether or not you heard Mr. P.H. Lyle make a statement there in your presence and in the presence of those others I have just named that it was too dark, he could not see what happened? A. Yes, sir, he certainly said it.
"Q. I will ask you whether or not Mary McBride Cox made any statement in your presence there — You were there all the time? A. Yes, sir.
"Q. Whether she made any statement there in your presence to Mr. Wesley Thrash or some other person that she held Theodore McBride — that she held Johnnie Nelson while Theodore hit him? A. No, sir. (An objection was made by a Mr. Munn, but it was overruled by the court.)
"Q. Could you have heard it if she had made a statement? A. Yes, sir.
"Q. Did you hear any conversation with them? A. No, sir, she didn't."
Whereupon, the court ruled that under Section 1528 of the Code of 1930, the proffered testimony of the wife should be excluded. Section 1528 provides that a husband or wife may be introduced by each other as witnesses in all cases, civil or criminal, and should be competent witnesses in their own behalf, against each other, in all controversies between them; but in all other instances where either of them is a party litigant, the other should not be required to answer interrogatories or make disclosure of any matters.
It will be noted from the statement made by the wife that the evidence so excluded might have been very influential on the question of guilt or innocence, and also on the question of the impeachment of the witness Lyle. In a prosecution for murder or manslaughter, the deceased is in no sense a party to the suit, and the wife was competent to testify as to what occurred at the scene of the killing, and as to statements made by others, or statements made in the presence of others, bearing on the material issues in coutroversy. The testimony attempted to be offered was not a privileged communication between husband and wife, and the husband was in no sense a party to the suit, as heretofore stated. A conversation between husband and wife in the absence of a third party is a privileged communication, but that question is not involved in this case, as no attempt was made to prove such communications. The wife was a competent witness as to matters offered to be proved by her, and the court erred in excluding her testimony. For which error, the case must be reversed and remanded for a new trial.
Reversed and remanded.