Mcqueen v. State

• Decision Date: 25 May 1925
• Docket Number: 24661
• Citation: 104 So. 168,139 Miss. 457
• Court: Mississippi Supreme Court
• Parties: MCQUEEN v. STATE. [*]

104 So. 168

139 Miss. 457

MCQUEEN v. STATE. ^[*]

No. 24661

Supreme Court of Mississippi

May 25, 1925

(In Banc.)

1 WITNESSES. Rule as to competency of one spouse to testify against other at common law stated.

Under the common law, one spouse could not be introduced to establish a crime against the other, except where the crime such as assault and battery, or like offense was committed against the other spouse.

2 WITNESSES. State may not introduce wife to prove former marriage in prosecution of husband for bigamy "controversy between husband and wife."

In prosecution of husband for bigamy, wife may not be introduced by state against husband to prove former marriage, under Code 1906, section 1916 (Hemingway's Code, section 1576) making husband and wife"competent witnesses in their own behalf as against each other in all controversies between them;" a bigamy prosecution not being a "controversy" between husband and wife within the statute.

ANDERSON and COOK, JJ., dissenting.

HON. J. Q. LANGSTON, Judge.

APPEAL from circuit court of Pearl River county, HON. J. Q. LANGSTON, Judge.

William McQueen was convicted of bigamy, and he appeals. Reversed and remanded.

Judgment reversed and case reversed.

Wm. A. Shipman, for appellant.

The court below erred in admitting Mrs. Louise McQueen wife of the appellant, and in permitting her to be sworn in the presence of the jury, and in allowing her to be called as a witness against the defendant, over his objection, and in permitting her to testify against her husband. Finklea v. State, 94 Miss. 777, 48 So. 1, where appellant was charged with and convicted of burglary, his wife was not permitted to testify. See, also, Carter v. State, 54 So. 734.

It was manifestly serious, grave and reversible error to admit the testimony of Mrs. McQueen over the objections of the defendant thereto.

By section 1679, Code of 1906, in the trial of suits for divorce, both parties shall be competent witnesses against the other. Another exception is in section 1916, Code 1906, whereby it is provided that "a husband and wife may be introduced by each other as witnesses in all cases, civil and criminal, and shall be competent witnesses in their own behalf, as against each other, in all controversies between them." But the testimony of Mrs. McQueen was not admissible under this section.

This court held in McRae v. State, 104 Miss. 861, 61 So. 977, that where a husband and father is being tried for vagrancy for failure to support his wife and child, without just cause, it is in effect a controversy between husband and wife, and is such a controversy as renders the wife competent to testify against her husband. The court says further that while the statute makes such failure to support, without just cause, a public wrong, remedial in its nature, that it is also a police regulation to compel the husband and father to provide for the support of his wife and children, so that they may not become a public charge, yet, in effect it created a controversy between the husband and wife; that the subject of the controversy is whether the husband shall support his family, and for this reason the court held the testimony of the wife to be competent and admissible. If the charge against the appellant here had been for failure to support his wife or children without just cause, a very different issue would have been presented to the court.

At common law the husband and wife were not competent as witnesses for or against each other--generally, but that an exception to the general rule was that a wife was a competent witness against her husband in a prosecution for an assault and battery committed by him on her person; that by statute in this state, the general rule has been further modified, so that in the trial of divorce suits both parties are competent to testify against the other; that wives and husbands are competent to testify as witnesses for each other in all cases, civil or criminal, and are competent witnesses in their own behalf as against each other in all controversies between them. The provisions of the last-mentioned exception have been extended by construction to include a case where the husband is under prosecution for failure to support his wife, without a just cause. Beyond this the court has not gone, and I apprehend it will be a long time before an exception will be grafted on the general rule, either by legislation or construction, that will have the effect of including within any exception the competency of husband and wife as witnesses against each other, where one is indicted and on trial for a felony, bigamy, for instance, a crime pure and simple, where the controversy or issue is wholly between the sovereign state and the accused.

With the exceptions and modifications mentioned the law in this regard remains as it was at common law. Strauss v. Hutson, 104 Miss. 637, 61 So. 594.

Under Code 1871, section 760, husband and wife are made competent witnesses for each other in civil cases, and by section 759, it is provided that: "Husband and wife may be witnesses for each other in all criminal cases, but they shall not be required to testify against each other, as witnesses for the prosecution. Nothing herein contained shall be so construed as to debar full cross-examination by the prosecution of any husband or wife who may be placed on the stand for the defense."

By section 1739, Code of 1892, the statute relative to the competency of husbands and wives as witnesses for each other, is brought forward from section 1601, Code 1880, which latter section reads: "Husband and wife may be introduced by each other as witnesses, in all cases, civil or criminal." As brought forward into the Code of 1892, section 1739, the section reads: "Husband and wife may be introduced by each other as witnesses in all cases, civil or criminal, and shall be competent witnesses in their, own behalf, as against each other, in all controversies between them." This section is brought forward in the Code 1906, as section 1916, exactly as it appears in the Code of 1892, and as section 1576, Hemingway's Code, without change.

In Byrd v. State, 57 Miss. 243, 34 Am. Rep. 440, decided under the statute as cited and quoted from the Code of 1971, the court below held that under the provision of the statute as then in force, the wife might become a voluntary witness for the prosecution against her husband's consent; but the supreme court, by Judge GEORGE, held it to be a wrong construction of the statute; that the statute is in derogation of common law; of a very ancient and well-established rule of the common law, based in great part upon grave reasons of public policy; that statutes which are in derogation of the common law must be strictly construed and limited to the expressed intent of the legislature.

See case note under Byrd v. State, 57 Miss. 243. In 34 Am. Rep. at 440, it is said that the New York Oyer and Terminer Justice OSBORN presiding, quashed the indictment in the case of Briggs for the murder of Woods, for the reason that the prisoner's wife was allowed to testify for the people against her husband before the grand jury. The statute under which this testimony was introduced is as follows. "In all criminal trials and examinations before trial a husband or wife may be examined in behalf of each other, but upon no such trial shall a husband or wife be compelled to testify against the other."

In Pearson v. State, 97 Miss. 841, 48 So. 1, a prosecution wherein the accused was charged with the rape of his own daughter, of tender years, it was held that the wife could not testify against the husband, citing Gardner v. State, 76 Miss. 515, 25 So. 363.

Exceptive provisions must be strictly construed. The clauses in statutes excepting from the prohibition, and permitting a husband or wife to testify against each other in certain cases, are to be strictly construed, as in derogation of common law and in order to invoke the application of the exception it must appear that the case is clearly within the terms of the exception. Lihs v. Lihs, 44 Nebr. 143, 62 N.W. 457; Huot v. Wise, 27 Minn. 68, 6 N.W. 425; Matthews v. Yerix, 48 Mich. 361, 12 N.W. 489; Carney v. Gleissner, 58 Wis. 674, 17 N.W. 398; Birdsall v. Dunn, 16 Wis. 235. The same rule is enforced in the federal courts. Jognson v. U. S. (C. C. A. 8th Cir. 1915), 221 F. 250; U. S. v. Gwynne (E. D. Pa., 1914), 209 F. 993.

F. S. Harmon, Special Assistant Attorney-General, for the state.

This entire case turns upon the competency of the lawful wife as a witness. Mrs. Louise McQueen, called as a witness for the state, stated that her name was Louise McQueen and upon being asked whether she was married or single responded that she was a married woman; that before her marriage her name was Louise Blanco; that she married William McQueen and pointed out the defendant at the bar as the said William McQueen. She testified as to the date of the marriage, the church where the ceremony took place, the minister who performed the ceremony, and the fact that she held in her hand the marriage certificate furnished her by the minister. She stated that she and her husband lived together by virtue of that ceremony for a little over four years; that two boys present in the court room were children by that marriage, and that she had never been divorced from the said William McQueen.

The court's attention is called at the very outset to the fact that the above, which sums up all the testimony given by this witness, shows that her testimony related solely to the fact of marriage, and not one single question or answer is found in this record wherein this lady drew back the curtain and disclosed the slightest fact concerning the marriage relation. She testified purely...