Summary
holding that crime-against-spouse exception to spousal privilege does not apply to prosecution of man charged with setting fire to home owned solely by him
Summary of this case from State v. MixOpinion
47249 Record No. 910599
November 8, 1991
Present: Carrico, C.J., Compton, Stephenson, Whiting, Lacy, and Hassell, JJ.
In the absence of a prosecution for an offense committed by one spouse against the other, the statutory exception to spousal privilege contained in Code Sec. 19.2-271.2 is inapplicable and, therefore, the defendant's wife was incompetent to testify against him. The conviction in an arson case is reversed and the case remanded for a new trial.
Criminal Law — Evidence — Spousal Privilege — Code Sec. 19.2-271.2 — Exceptions
The defendant was indicted for arson and charged with burning his own home. His estranged wife testified at trial that she owned all the furnishings in the dwelling. Over his objection, she also testified that he had threatened to "torch" her property when she told him that she was leaving him. The defendant was convicted by a jury and judgment was entered on the verdict. He appealed, contending that Code Sec. 19.2-271.2 prohibited his wife from testifying without his consent. The Court of Appeals denied his petition for appeal and he appeals to the Virginia Supreme Court.
1. Code Sec. 19.2-271.2 provides that one spouse cannot be compelled or allowed to testify against the other in a criminal case without the consent of the accused spouse. An exception exists in the case of a prosecution for an offense committed by one spouse against the other.
2. The defendant was not charged with, or tried for, any offense against his wife because he was indicted and tried solely for arson of his house.
3. The exception to spousal privilege contained in the Code applies to offenses committed against the property, as well as the person, of a testifying spouse, but this does not dispense with the statutory requirement of a prosecution for an offense against the testifying spouse's person or property.
Appeal from a ruling of the Court of Appeals of Virginia.
Reversed and remanded.
Thomas P. Cheely for appellant.
Janet F. Rosser, Assistant Attorney General (Mary Sue Terry, Attorney General, on brief), for appellee.
In this case we consider whether Va. Code Sec. 19.2-271.2 was properly applied to allow one spouse to testify against the other in a criminal proceeding.
Jimmie Donald Creech was indicted for arson, Code Sec. 18.2-77. The indictment charged that he "unlawfully and feloniously in the nighttime, maliciously burn[ed] a dwelling usually occupied, belonging to Jimmie Donald Creech." At trial, Creech's estranged wife, Vera Creech, testified that she owned all the furnishings in the dwelling and had brought them to the dwelling when she married Creech. She also testified, over Creech's objection and without his permission, that Creech had threatened to "torch" her property when she told him she was leaving him.
Creech was convicted by a jury and the Circuit Court of Dinwiddie County entered judgment on the verdict. Creech appealed, contending that Code Sec. 19.2-271.2 prohibited Mrs. Creech's testimony without his consent. The Court of Appeals denied Creech's petition for appeal, concluding that the exception to the general rule of spousal privilege contained in Code Sec. 19.2-271.2 was properly applied, citing Hudson v. Commonwealth, 223 Va. 596, 292 S.E.2d 317 (1982). We granted Creech an appeal, and we reverse.
[1-2] Code Sec. 19.2-271.2 provides that one spouse cannot be compelled or allowed to testify against the other in a criminal case without the consent of the accused spouse except "(i) in the case of a prosecution for an offense committed by one against the other . . . ." This case lacks an element essential for invocation of the statutory exception to the general rule of spousal immunity — prosecution of an offense committed by Creech against Mrs. Creech.
As we stated in Jenkins v. Commonwealth, 219 Va. 764, 767, 250 S.E.2d 763, 765 (1979):
Neither of the indictments charged that defendant committed an offense against his wife, so neither was a prosecution for an offense committed against the wife. Therefore, [the wife] was incompetent to testify against her husband.
Creech was neither charged with, nor tried for, any offense against his wife. While Mrs. Creech's property was destroyed along with Creech's house in the fire, Creech was indicted and tried solely for arson of his house.
Our subsequent decisions in Hudson, supra, and Brown v. Commonwealth, 223 Va. 601, 292 S.E.2d 319 (1982), have not altered the prerequisite of a prosecution for an offense committed against the testifying spouse. In Hudson, the defendant was charged with and convicted of, inter alia, "obtaining by false pretenses more than $200 from Mrs. Hudson." 223 Va. at 597, 292 S.E.2d at 317. We determined that the exception to spousal privilege contained in Code Sec. 19.2-271.2 applies to offenses committed against the property, as well as the person, of a testifying spouse. Id. at 600, 292 S.E.2d at 319. This determination, however, does not dispense with the statutory requirement of a prosecution for an offense against the testifying spouse's person or property.
In Brown, the prerequisite prosecution of a crime against the testifying spouse was again present. There, the husband was charged with, prosecuted for, and convicted of malicious wounding of his wife, as well as the murder of her grandmother, and the use of a firearm in the commission of both offenses. 223 Va. at 603-04, 292 S.E.2d at 320-21.
In the absence of a prosecution for an offense committed by one spouse against the other, the statutory exception to spousal privilege contained in Code Sec. 19.2-271.2 is inapplicable. Therefore, Mrs. Creech was incompetent to testify against her husband.
Accordingly, we will reverse the conviction and remand the case for a new trial.
Reversed and remanded.