State v. Antill

• Decision Date: 01 April 1964
• Docket Number: No. 37843,37843
• Citation: 26 O.O.2d 366,197 N.E.2d 548,176 Ohio St. 61
• Parties: , 26 O.O.2d 366 The STATE of Ohio, Appellee, v. ANTILL, Appellant.
• Court: Ohio Supreme Court

Page 61

176 Ohio St. 61

197 N.E.2d 548, 26 O.O.2d 366

The STATE of Ohio, Appellee, v. ANTILL, Appellant.

No. 37843.

Supreme Court of Ohio.

April 1, 1964.

Syllabus by the Court

1. Husband and wife are competent witnesses to testify in behalf of each other in all criminal prosecutions and to testify against each other in all actions, prosecutions, and proceedings for personal injury of either by the other. (Section 2945.42, Revised Code.)

2. Where an indictment is returned against a husband for an assault upon his wife with a dangerous weapon or instrument likely to produce death or great bodily harm, and the wife is in fact injured, the wife is a competent witness against her husband at the trial on such indictment. (Section 2945.42, Revised Code, construed; Whipp v. State [1877], 34 Ohio St. 87, followed.)

3. Where a wife, by Section 2945.42, Revised Code, is made a competent witness against her husband, it is not optional with the wife to testify or not; if presented as a witness she may be compelled to testify.

4. Where a physician is required by Section 2917.44, Revised Code, to report to a law-enforcement officer a gunshot wound or wound inflicted by a deadly weapon, the former may testify, without violating the physician-patient privilege, as to the description of the wounded person, as to his name and address, if known, and as to the description of the nature and location of such wound, obtained by examination, observation and treatment of the victim.

5. Where from the evidence reasonable minds can reach different conclusions on the issue of whether the defendant is guilty beyond a reasonable doubt, the case is one for determination by the jury. On the evening of December 9, 1961, Homer W. Antill, the appellant herein, was involved in a violent argument with his wife, Esther Antill. During the argument, Mrs. Antill sustained a puncturetype chest wound, certain other cuts and bruises about her arm and upper body.

The Grand Jury of Monroe County in the January 1962 term of court returned an indictment against appellant, charging him with unlawfully assaulting Mrs. Antill with a dangerous weapon or instrument likely to produce great bodily harm.

At the trial, the prosecution called the victim, Mrs. Antill, as a witness against her husband. At first she refused to testify. The court found her in contempt and ordered her to be confined in the county jail until she was willing to testify. A short time later, Mrs. Antill took the stand and testified.

The physician who attended Mrs. Antill was called as a witness by the prosecution. After being advised by the court that his testimony would not involve a violation of the physician-patient privilege, he testified relative to the condition in which he found Mrs. Antill and gave his opinion as to the cause of her injuries.

The defense offered no witnesses and the appellant did not take the witness stand in his own behalf.

The jury returned a verdict of guilty as charged. Judgment was entered on the verdict.

The Court of Appeals affirmed the judgment of the trial court.

The cause is before this court upon allowance of a motion for leave to appeal.

T. J. Kremer, Jr., Pros. Atty., for appellee.

George F. Burkhart and F. Vincent Ballard, Woodsfield, for appellant.

MATTHIAS, Judge.

This case presents two questions for determination by the court:

1. Is a wife a competent witness and can she be compelled to testify against her husband under an indictment charging that he 'did unlawfully assault * * * [his wife] with a dangerous weapon or instrument likely to produce great bodily harm,' where a personal injury to the wife resulted therefrom?

2. Is the physician who treats a person who has suffered a wound inflicted by a deadly weapon permitted to testify as to the condition of the victim, in a criminal prosecution therefor?

At common law, there are certain exceptions to the general rule excluding a husband and wife from testifying for or against each other. In actions involving a personal injury of one committed by the other, the injured spouse is permitted to testify. This exception was said to be based on 'necessity.' As a general rule, no outsider is present when a person injures his spouse. If the injured person were not permitted to testify, the law would be powerless to redress the wrong. The guilty party would be able to injure his spouse in the privacy of their home with complete immunity. An exception was therefore necessary in order to prevent injustice. 8 Wigmore, Evidence (1961). 242, Section 2239.

This court in Whipp v. State (1877), 34 Ohio St. 87, permitted a husband to testify against his wife. The wife had been indicted for assault with intent to kill her husband. The court recognized the general exclusionary rule but held that the husband was a competent witness since his wife had inflicted a personal injury on him.

The Whipp case was cited and approved in State v. Orth (1908), 79 Ohio St. 130, 86 N.E. 476, 22 L.R.A.,N.S., 240.

The exception in case of personal injury by the husband or wife to the other was codified in Ohio. 86 Ohio Laws, p. 161 (1889). Section 2945.42, Revised Code, authorizes a husband and wife to testify against each other in a prosecution for personal injury of either by the other. In the instant case, the husband was indicted for assault with a dangerous weapon. He allegedly struck his wife and stabbed her with a butcher knife. To hold that the wife is not a competent witness under such circumstances places a strained interpretation on the language of Section 2945.42, Revised Code, and ignores its commonlaw background.

The injured spouse is permitted to testify in order that he or she will not be exposed to personal injury without having a remedy. However, where, as here, the facts constitute a crime, his or her right to testify also ensures that the public will not suffer an offense without a remedy. The wrongdoer not only injures his spouse but he also injures the public, and it is for his offense against the public that he is subject to criminal prosecution. When the injured spouse is a witness for the state his competency cannot be affected by his desires or fears. He must testify to protect the public. Turner v. State (1882), 60 Miss. 351, 45 Am.Rep. 412.

The demand for the testimony of the injured spouse comes not from him alone but from the community as a whole. Every member of the community has a duty to give whatever testimony he is capable of giving. The truth must be known, as far as possible, to enable the law to provide justice in each case. See 8 Wigmore, Evidence (1961), 70, Section 2192; and In re Story (1953), 159 Ohio St. 144, 148, 149, 111 N.E.2d 385, 36 A.L.R.2d 1312.

In some instances, the law feels that another interest is sufficiently important to warrant an exception to this duty to give testimony. Thus, to promote marital peace there is a privilege not to disclose in court confidential communications between husband and wife. However, the basis for this privilege is lacking where a person is tried for assaulting his spouse. '* * * it is an overgenerous assumption that the wife who has been beaten, poisoned or deserted is still on such terms of delicate good feeling with her spouse that her testimony must not be enforced lest the iridescent halo of peace be dispelled by the breath of disparaging testimony. And if there were, conceivably, any such peace, would it be a peace such as the law could desire to protect? Could it be any other peace than that which the tyrant secures for himself by oppression?' 8 Wigmore, Evidence (1961), 242, 243, Section 2239.

Under the circumstances involved in the instant case, the wife is competent and like any other witness can be compelled to testify. If she refuses she can be found in contempt and imprisoned until she agrees to testify. See Sections 2705.02(c) and 2705.06, Revised Code.

No violation of the physician-patient privilege (Section 2317.02, Revised Code) occurred in allowing the physician who treated the victim to testify. The purpose of this privilege is to encourage patients to make a full disclosure of their symptoms and condition to their physicians without fear that such matters will later become public. Against the interest of the patient in having his condition remain confidential, must be balanced the interest of the public in detecting crimes in order to protect society.

To accomplish this end, the General Assembly, in 1961, enacted Section 2917.44, Revised Code (129 Ohio Laws, p. 1930), which reads, in part, as follows:

'* * * any physician who treats, or is called upon to treat, any such would [gunshot wound or wound inflicted by a deadly weapon] shall make a report setting forth a description of the wounded person, his name and address, if known, and a description of the nature and location of such wound.

'No person who makes a report in good faith with a view of complying with the requirements of this section shall, by reason thereof, have violated any confidential relationship * * *.'

It is, therefore, proper for the physician who treats a person wounded by a deadly weapon to testify in court as to the nature of the wound. The publicity against which the privilege is supposed to protect has already taken place. The details of the wound must have been reported by the physician to a law-enforcement officer. The only purpose that sustaining the privilege can now serve is to obstruct the course of justice.

The function of this court in reviewing a conviction is limited to the question of whether there was sufficient evidence to warrant the submission of the case to the jury and to support the verdict returned. State v. Sheppard (1956), 165 Ohio St. 293, paragraph five of the syllabus, 135 N.E.2d 340.

If there is evidence from which reasonable minds can reach different conclusions on the issue of whether the defendant is guilty beyond a reasonable doubt, the case should be submitted to the jury for its...