Graham v. State

• Decision Date: 02 November 1964
• Docket Number: No. 43193,43193
• Citation: 250 Miss. 816,168 So.2d 496
• Parties: Cassie Dewitt GRAHAM v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 496

168 So.2d 496

250 Miss. 816

Cassie Dewitt GRAHAM v. STATE of Mississippi.

No. 43193.

Supreme Court of Mississippi.

Nov. 2, 1964.

Lawrence D. Arrington, Hattiesburg, for appellant.

Joe T. Patterson, Atty. Gen., by G. Garland Lyell, Jr., Asst. Atty. Gen., Jackson, for appellee.

GILLESPIE, Justice.

The principal question for our decision in this case is: Is a wife a competent witness before the grand jury investigating a charge that the husband had incestuous relations with their minor daughter? We hold the wife is a competent witness against her husband when he is charged with incest with his and his wife's minor daughter.

Appellant was indicted, tried and convicted of having incestuous relations with his minor daughter. The evidence was ample to justify a verdict of guilty; indeed, there was no denial by appellant.

In a motion for a new trial appellant contended that the indictment was void because the wife appeared before the grand jury and gave testimony touching the charge then pending against appellant. It was alleged that this fact was unknown to appellant or his counsel until after the return of the verdict. We assume, without deciding, that the question of the competency of the wife as a witness was properly raised below. We also assume, without deciding, that the same rule applies concerning the competency of the wife as a witness against her husband whether the testimony is before the grand jury or on the trial under the indictment.

This question involves Mississippi Code Annotated section 1689 (1956), which provides as follows: 'Husband and wife may be introduced by each other as witness in all cases, civil or criminal, and shall be competent witnesses in their own behalf, as against each other, in all controversies between them. A criminal prosecution of either husband or wife for contributing to the neglect or delinquency of a child or desertion or nonsupport of children under the age of sixteen (16) years or abandonment of children shall be deemed controversies between husband and wife for the purpose of this section. But in all other instances where either of them is a party litigant the other shall not be competent as a witness and shall not be required to answer interrogatories or to make discovery of any matters involved in any such other instances without the consent of both.' (Emphasis supplied.)

That part of the statute in italics was added by Chapter 236, Laws of 1954.

The statute is a partial codification of the common law rule that husband and wife are not competent witnesses against each other. The reason for the common...