Merritt v. State

• Decision Date: 02 November 1976
• Docket Number: No. 49247,49247
• Citation: 339 So.2d 1366
• Parties: Larry A. MERRITT v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 1366

339 So.2d 1366

93 A.L.R.3d 1005

Larry A. MERRITT v. STATE of Mississippi.

No. 49247.

Supreme Court of Mississippi.

Nov. 2, 1976.

Rehearing Denied Nov. 30, 1976.

Dale & Upton, Sebe Dale, Jr., Columbia, for appellant.

A. F. Summer, Atty. Gen. by Karen Gilfoy, Asst. Atty. Gen., Jackson, for appellee.

Before GILLESPIE, C.J., and ROBERTSON and LEE, JJ.

GILLESPIE, Chief Justice, for the Court:

Larry Alan Merritt was convicted in the Circuit Court of Marion County for the murder of his two-year old daughter, Shannon. He was sentenced to life imprisonment.

The facts are stated in the light most favorable to the State because the jury returned a verdict of guilty. Shannon Merritt, age two, daughter of the defendant and his wife Toddie Lynn Merritt, died on February 8, 1975. In November, 1974, again in December of the same year, and again about the middle of January, 1975, the defendant discussed matters concerning the death of his daughter Shannon, including comments as to who pallbearers would be in the event of her death, what his wife's mother would do if Shannon died, and how many of a certain kind of pill it would take to kill her. On December 14, 1974, defendant took out insurance policies on the lives of his two daughters: $25,000 on the life of Shannon, and $15,000 on the life of Shelia, his one-year old daughter. Defendant borrowed the money from a bank to pay the premiums. Defendant and his wife, Toddie Lynn, were the beneficiaries. These policies became effective on December 14, 1974, and were delivered and explained to the Merritts in the latter part of January, 1975.

On the night of February 7, defendant got out of his bed on two occasions, and told his wife he wanted 'to sleep with the babies.' He had never slept with the babies before. The next morning about five o'clock, Toddie Lynn heard the defendant call out twice, 'Oh, my God,' and saw her husband holding the body of Shannon in his lap. He was in the process of removing from Shannon's neck a pull cord which had been disconnected from a toy frog. Defendant explained to his wife that he had gone to his car to leave but had returned to kiss the babies good-bye. He also told his wife that he found Shannon lying face down with her face in her pillow. However, the autopsy subsequently performed revealed that the blood, due to gravitational pull, had settled in the back part of Shannon's body and in the opinion of the physician performing the autopsy, the child was lying on her back at the time of her death. Expert opinion indicated that death was due to asphyxia. However, due to the fact that the cord around Shannon's neck did not do sufficient damage to the tissues to indicate strangulation, a pathologist was of the opinion that the asphyxia was the result of suffocation.

On the morning of Shannon's death, the defendant made two telephone calls between 7:30 and 7:45, concerning the insurance on Shannon's life. About 7:40 o'clock on the morning of Shannon's death, defendant informed the agent who had written the insurance policies that Shannon had died and defendant wanted to know how he could get his insurance money. He called the agent again on the evening of February 8, and on Monday, February 10, he brought the policy to the insurance agent's office. The defendant did not take the stand at the trial.

The question for our decision is whether defendant's wife was a competent witness to testify before the grand jury and at the trial.

Mississippi Code Annotated section 13-1-5 (1972) states:

Husbands and wives 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. 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 added)

That part of the statute in italics was added by Chapter 236, Laws of 1954, and became effective on June 20, 1954.

The original statute was a partial codification of the common law rule that one spouse was incompetent to testify in any case for or against the other. The reasons for the common law rule and its codified form are two-fold: (1) At common law, the husband and wife were considered as but one person and because of this unity and identity of husband and wife, when one was excluded on the ground of interest, the other was also excluded (at that time a party in interest was not a competent witness in his own behalf); (2) the courts were reluctant to sanction any rule tending to promote domestic dissension and endeavored to preserve inviolate the mutual confidence which is essential to the marriage relation, the peace of society, and the social welfare. McRae v. State, 104 Miss. 861, 61 So. 977 (1913); 81 Am.Jur.2d, Witnesses § 111 (1976). The common law rule is of great antiquity.

The legislature by several amendments has recognized that at least part of the reasons that brought the rule into being no longer exist. The common law rule that disqualified interested persons as witnesses was removed in this jurisdiction by Chapter 61, Article 190, Code of 1857 (Miss.Code Ann. § 13-1-3 (1972)). Thus the first of the above-stated reasons for the common law rule concerning spouses does not now exist. The policy considerations stated above as the second of the two-fold reasons for the rule that a spouse was not a competent witness against the other exists now only in part. For instance, the law does not now regard husband and wife as one person in the sense it once did. Disability of coverture was abolished in 1880. (Miss.Code Ann. § 93-3-1 (1972)). Husband and wife have been able to sue each other since 1880. (Miss.Code Ann. § 93-3-3 (1972)). Dower and curtesy were abolished the same year. (Miss.Code Ann. § 93-3-5 (1972)).

The earliest statute on the subject was the Code of 1857, Chapter 61, Article 193, the entire text of which was: 'In criminal cases, husband and wife shall be competent witnesses for each other.' It has been amended several times in order to broaden the category of actions in which a spouse is a competent witness.

Prior to the 1954 amendment, the Court decided McRae, where the defendant was convicted of vagrancy and the question arose as to whether the wife of the defendant was a competent witness against her husband. At that time husbands and wives were 'competent witnesses in their own behalf, as against each other, in all controversies between them.' The question was whether in a prosecution for vagrancy the proceeding was a controversy between the husband and wife. The Court stated that the vagrancy statute was a police regulation for the purpose of requiring the husband and father or the head of the family to provide, within his ability, for the support of his wife or family, so that they would not become a public charge. The Court held, in effect, that in a prosecution for vagrancy a controversy bstween the husband and wife existed and the Court concluded by saying, 'We believe that this is such a controversy as to render competent the testimony of the wife in this case.' 104 Miss. at 870, 61 So. at 979. Thereafter the statute was amended, as already stated, in 1954, and there has been two significant cases since that amendment, the first being Fairley v. State, 225 Miss. 371, 83 So.2d 278 (1955). In Fairley, the question was whether the wife was a competent witness against her husband in a prosecution wherein the husband was charged with the rape of his child. The mother did not testify but the court allowed the physician who examined the child to testify that the child's mother reported the rape to him. The Court held that the physician could not testify because the wife, had she been introduced, would not have been a competent witness. That case is of no assistance in determining whether the 1954 amendment should or should not have been applied for the reason that the State conceded that the mother would not have been permitted to testify. An examination of this case and the original record reveals that the 1954 amendment, although it was in effect several months prior to that crime, was not brought to the attention of the Court or considered by it in rendering the decision.

The other case following the 1954 amendment was Graham v. State, 250 Miss. 816, 168 So.2d 496 (1964). In Graham, the Court stated, '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,' and then stated as follows:

The purpose of the 1954 amendment was to further extend the area wherein husband and wife could testify against each other in order to effectively enforce the criminal laws enacted for the purpose of protecting the marital status. Under the 1954 amendment to sections 1689, husband and wife are competent to testify against each other in prosecutions for contributing to the neglect or delinquency of a child. The crime of incest involves contributing to the delinquency of a child. We are of the opinion that under the 1954 amendment husband and wife are competent witnesses against each other in all prosecutions within the general classes of crimes therein described. It cannot be successfully argued that incest with appellant's minor daughter was not a crime contributing to the delinquency of said child. 250 Miss. at 819, 168 So.2d at 497.

It is well settled that a wife is competent to testify against her husband for a crime of personal violence committed by him against her....