1977); Prueitt v. State, 261 So.2d 119, 124-25 (Miss. 1972); Williams v. State, 216 Miss. 158, 168, 61 So.2d 793, 797 (1953); Cofer, 152 Miss. at 770, 118 So. at 615; see also Caldwell v. State, 194 So.2d 878, 881 (Miss. 1967) (incriminating box found in plain view outside trailer pursuant to specific provision in warrant authorizing seizure of contraband in addition to property described was lawfully seizable); Reynolds v. State, 136 Miss. 329, 345, 101 So. 485, 487 (1924) (officers who were legally in residence pursuant to warrant authorizing search for intoxicating liquors and saw still, could legally seize still). Indeed, the Cofer Court recognized this exception.
The Court holds that all cases cited by appellant: Smith v. State, 193 Miss. 474, 10 So.2d 352 (1942), Ford v. State, 218 So.2d 731 (Miss. 1969), Caldwell v. State, 194 So.2d 878 (Miss. 1967) involved situations where a third party was permitted to testify to incriminating hearsay statements made by one spouse outside the presence of the other spouse. The privilege protected by Miss. Code Ann. ยง 13-1-5 extends only to communications which are intended to be confidential.
Ford v. State, 218 So.2d 731 (Miss. 1969); Caldwell v. State, 194 So.2d 878 (Miss. 1967). See also McCormick's Handbook of the Law of Evidence 168 (2d ed. 1972) (just as spouse cannot betray confidence by testifying in court, he or she may not destroy the privilege by out-of-court statements either).
1972); Gann v. State, 234 So.2d 627 (Miss. 1970); Williams v. State, 216 Miss. 158, 61 So.2d 793 (1953); see also Caldwell v. State, 194 So.2d 878 (Miss. 1967); and 79 C.J.S. Searches and Seizures ยง 17, at 792-793 (1952). Appellant has cited Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963) and Marron v. United States, 275 U.S. 192, 48 S.Ct. 74, 72 L.Ed. 231 (1927); but we are of the opinion that these cases are not applicable here because the facts in those cases are different from the facts in this case.
It is claimed that this was an unreasonable and indiscriminate search. In addition to C.J.S., see Anglin v. Director, 439 F.2d 1342 (4th Cir. 1971); People v. Edwards, 14 Cal.App.3d 57, 92 Cal.Rptr. 91 (Cal. 1970); Commonwealth v. Watcik, 266 N.E.2d 645 (Mass. 1971); Caldwell v. State, 194 So.2d 878 (Miss. 1967); Williams v. State, 216 Miss. 158, 61 So.2d 793 (1953). The officers were lawfully in the house.
Appellant urges at great length that it was error for the lower court to overrule his objections to the evidence and testimony offered against him by the State which pertained to the alleged commission of a crime by the wife of appellant. Appellant urges that Caldwell v. State, 194 So.2d 878 (Miss. 1967) is controlling insofar as this assignment of error is concerned. In that case Mrs. Caldwell testified against her husband without his consent, which was in violation of the provisions of Mississippi Code 1942 Annotated section 1689 (1956).