Johnson v. State

• Decision Date: 07 January 1892
• Parties: JOHNSON v. STATE.
• Court: Alabama Supreme Court

10 So. 427

94 Ala. 53

JOHNSON v. STATE.

Supreme Court of Alabama

January 7, 1892

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...