Johnson v. State

Decision Date07 January 1892
Citation10 So. 427,94 Ala. 53
PartiesJOHNSON v. STATE.
CourtAlabama Supreme Court

Appeal from city court of Montgomery; I. M. ARRINGTON, Judge.

Wesley Johnson was indicted and tried for an assault with intent to murder his wife. He was convicted of an assault and battery and now appeals. Affirmed.

John Gindrat Winter, for appellant.

Wm. L. Martin, Atty. Gen., for the State.

MCCLELLAN J.

The sole exception reserved on this record goes to the action of the trial court in compelling the defendant's wife to testify on his trial upon a charge of assault and battery committed upon her person. The right of the wife to testify in such case-her competency as a witness-is admitted. We do not think there can be any doubt of the power of the court to compel her to testify. She is made competent for her own protection not as an individual simply, but as an individual member of society; and that society-the public-has interest in her testimony, to the end that crime may be punished, which is distinct from any purely personal right of hers, and which she cannot waive. Upon considerations of this character, the law has come to be well settled in recognized texts and by adjudications of courts of high standing that the wife is not only competent in such cases, but is compelled, to testify. Mr. Justice Stephens, in his Digest of the Law of Evidence which is incorporated bodily in the American and English Encyclopædia of Law, as "containing the most clear and concise statements of the law of evidence extant," declares the rule to be "that in any criminal proceeding against the husband or wife, for any bodily injury or violence inflicted upon his or her wife or husband, such wife or husband is competent and compelled to testify." 7 Amer. & Eng. Enc. Law, p. 102. And so it has been expressly declared in the following well considered cases: Turner v. State, 60 Miss. 351; Dumas v. State, 14 Tex.App. 465; Bramlette v. State, 21 Tex.App. 611. [1] Moreover, the wife's competency being conceded, and her testimony being relevant, it is not perceived that any legal wrong is done to the defendant by compelling her to testify. As was said in Turner v. State, supra: "If the proposition be [as is contended in this case] that the wife has only a privilege of testifying or not, as she may elect, it is clear that the appellant cannot assign for error the action of the court in compelling her to give testimony over her objection; for, if the action of the court be error, it is the privilege of the witness, and not the legal right or immunity of the defendant, which is impaired. 1 Greenl. Ev. § 451; 2 Phil. Ev. 941; Rosc. N. P. Ev. 146; ...

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14 cases
  • Ex Parte Beville
    • United States
    • Florida Supreme Court
    • November 23, 1909
    ... ... disability and incompetency as a matter of privilege ... By ... statutes in this state the husband and the wife are made ... competent and compellable witnesses for or against each other ... in both civil and criminal cases ... COUNSEL ... [50 So. 685] ... [58 Fla. 171] Thomas Palmer, J. C. B. Koonce, J. B. Johnson, ... and J. H. Jones, for petitioner ... Park ... Trammell, Atty. Gen., for the State ... OPINION ... PARKHILL, ... ...
  • Wyatt v. United States, 119
    • United States
    • U.S. Supreme Court
    • May 16, 1960
    ...That court, in an 'exception of necessity' case, held that the wife was not only competent to testify, but also compellable. Johnson v. State, 94 Ala. 53, 10 So. 427. The Alabama Legislature, however, abolished this decision by statute. Ala.Code, 1940, Tit. 15, § 5. See the sources cited in......
  • McCoy v. State, 5 Div. 53.
    • United States
    • Alabama Supreme Court
    • May 29, 1930
    ... ... desires, to testify against the husband and over his ... objection; she shall not be compelled to do so. Acts 1915, p ... 942, § 1, section 5639, Code; Jay v. State, 15 Ala ... App. 255, 73 So. 137; De Bardeleben v. State, 16 ... Ala. App. 367, 77 So. 979. See Johnson v. State, 94 ... Ala. 53, 10 So. 427 ... In ... Woodward v. State, 21 Ala. App. 417, 109 So. 119, ... the codefendant refused to testify for the state on the ... second trial of accused and refused at the last trial; other ... witnesses were permitted, on proper predicate, to ... ...
  • State v. Antill
    • United States
    • Ohio Supreme Court
    • April 1, 1964
    ...v. State (1886), 21 Tex.App. 611, 2 S.W. 765. In fact, shortly after the decisions in the foregoing cases, Alabama, in Johnson v. State (1891), 94 Ala. 53, 10 So. 427, reached the same conclusion. This rule was altered by statute. Section 311, Title 15, Alabama Code. Only two additional cas......
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