State v. Dunbar

• Decision Date: 13 June 1950
• Docket Number: No. 41819,No. 1,41819,1
• Parties: STATE v. DUNBAR
• Court: Missouri Supreme Court

Page 845

230 S.W.2d 845

360 Mo. 788

STATE v. DUNBAR.

No. 41819.

Supreme Court of Missouri, Division No. 1.

June 13, 1950.

J. Arthur Francis, Ironton, for appellant.

J. E. Taylor, Attorney General, Hugh P. Williamson, Assistant Attorney General, for respondent.

CLARK, Presiding Judge.

Upon an information filed by the prosecuting attorney, defendant was charged with felonious assault this malice. At the trial a jury returned a verdict of guilty and assessed his punishment at imprisonment in the penitentiary for a term of thirteen years. From the ensuing judgment and sentence defendant appeals.

The evidence showed that defendant shot his wife, Florence Dunbar, with a shot-gun, making it necessary to have her right arm amputated and otherwise causing her serious injuries. The defense did not deny the shooting, but claimed that it was accidental and also that appellant was insane.

Appellant complains that the trial court erred in the following particulars:

1. In overruling his motion to quash the complaint filed against him, sworn to by his wife, and the transcript of the magistrate court.

2. In requiring the wife to testify against her husband against her will and over the objection of the appellant.

3. In failing to instruct the jury on all the law of the case, particularly on the question of accidental shooting.

4. In giving instructions 1, 5, and 7.

5. That the verdict was against the law and the evidence.

6. The court had no jurisdiction of the person of the defendant because he was a ward of a United States Veterans' Hospital, committed there by an order of the probate court.

The first two assignments are based on Section 4081, Revised Statutes Missouri 1939, Mo.R.S.A., which in part is as follows: 'No person shall be incompetent to testify as a witness in any criminal cause or prosecution by reason of being the * * * husband or wife of the accused, * * * Provided, that no person on trial or examination, nor wife or husband of such person, shall be required to testify, but any such person may, at the option of the defendant, testify in his behalf * * *.'

At common law a husband or wife could not testify for or against each other in any legal proceeding in which the other was a party except in the prosecution of one for criminal injury to the other, as for assault and battery. State v. Kodat, 158 Mo. 125, 59 S.W. 73, 51 L.R.A. 509, 81 Am.St.Rep. 292; State v. Koelzer, 348 Mo. 468, 154 S.W.2d 84; Ex parte Dickinson, Mo.App., 132 S.W.2d 243.

Section 4081 does not change the common law, uniformly followed by this court, that a husband or wife may be permitted to testify in the prosecution of one for criminal injury to the other. Under the facts of the instant case, Florence Dunbar was a competent witness against her husband, the appellant, and it follows that she was competent to sign the complaint against him, provided she did so voluntarily. The early case cited by appellant, State v. Berlin, 42 Mo. 572, does not conflict, but in principle sustains, what we have just said. That case was decided before any statute similar to present section 4081 had been enacted. A wife then was not even permitted to testify either for or against her husband in a criminal case except in a prosecution for a criminal injury to her. There the wife signed a complaint against her husband on a charge not coming within the exception and this court held that as the wife was incompetent to testify she was incompetent to sign the complaint.

On the motion to quash the complaint in the instant case, the trial court heard evidence outside the presence of the jury on the question of whether Mrs. Dunbar signed the complaint voluntarily. The evidence was in conflict, but we cannot say that the court abused its discretion in holding that she signed the complaint voluntarily and in overruling the motion to quash.

At the trial the State put Mrs. Dunbar on the witness stand. Appellant's counsel objected on the ground that she was an involuntary witness and could not be compelled to testify. The court permitted opposing counsel to ask her preliminary questions in response to which she positively stated that she did not desire to testify against her husband, and that she appeared as a witness solely because she had been subpoenaed. At first the trial court sustained the objection to her testimony, but later reversed his ruling with the following statement: 'Let the record show, at this time, I am going to reverse my ruling that she cannot be required to testify in this case and may go ahead and be allowed to testify. I have looked at the statute. It does not apply in criminal cases.'

This latter ruling was plainly erroneous. The statute expressly applies to criminal causes. Under the statute, we must reluctantly hold that, while Mrs. Dunbar was competent to testify in this case, she could not legally be required to do so. One synonym for 'require' is 'compel' and that is the sense in which the term 'required' is used in the statute.

At common law one spouse was incompetent to testify against the other, except for a criminal injury committed by one against the other. The first part of Section 4081 makes either spouse competent to testify in any criminal case, in which the other spouse is a defendant, but the proviso says that neither spouse shall be required to testify, which must also refer to any criminal case, including a prosecution of one spouse for criminal injury to the other.

That portion of the statute which reads 'but any such person may, at the option of the defendant, testify in his behalf,' has no bearing on the instant case and seems to be an unnecessary provision. The preceding portion of the statute makes one spouse a competent, but not compellable, witness in any criminal charge against the other spouse; that is, he or she may, at his or her own option, testify as a witness for the State. Then the statute, in effect, goes on to say that such spouse may, at the option of the defendant, testify as a defense witness. Of course, any defendant has the option to determine what witnesses shall be summoned on behalf of the defense.

Section 4081 in its present form has been in force since 1879. Similar statutes have been in force in other states for many years. After diligent search we have found no case, either in this or another jurisdiction, which is precisely in point in favor of the construction which we here put upon our statute and we have found no case in conflict with such construction.

Johnson v. State, 94 Ala. 53, 10 So. 427, decided by the Supreme Court of Alabama in 1892, was a prosecution of a husband for assault and battery upon his wife. It was held that at common law a wife was not only a competent witness in such a case, but she could be compelled to testify. The decision was put upon public policy, to wit, the interest which the public has in the punishment of crime. No statute was considered. The case was followed by the same court in McGee v. State, 4 Ala.App. 54, 58 So. 1008, decided in 1912.

In 1915 Alabama enacted a statute which contains a provision that 'The husband and wife may testify either for or against each other in criminal cases, but shall not be compelled to do so.' Gen.Acts 1915, p. 942. After the passage of that statute we find three Alabama cases, each holding that it is reversible error to compel one spouse to testify against the other. De Bardeleben v. State, 16 Ala.App. 367, 77 So. 979, decided in 1918; McCoy v. State, 221 Ala. 466, 129 So. 21, decided in 1930; Taylor v. State, 25 Ala.App. 408, 147 So. 647, decided in 1933. None of those cases was a prosecution of one spouse for a criminal injury to the other, but the language used in the decisions is general, indicating that the statute is applicable in cases of direct violence by one spouse to the other as well as in other cases.

In State v. Snyder, 93 N.J.L. 18, 107 A. 167, decided in 1919, the wife of defendant procured his indictment for perjury and, over his objection, testified against him at the trial. Held: her testimony was properly admitted under a statute which provided: 'Upon the trial of any indictment, * * * a married woman shall be admitted to testify against her husband when she is the complainant against him, if she shall offer herself as a witness.' On its face this statute applies to any criminal case and makes it optional with the wife whether 'she shall offer herself as a witness.'

In State v. Pennington, 124 Mo. 388, 27 S.W. 1106, decided in 1894, defendant was charged with feloniously assaulting his wife. This court held that the wife was a competent witness for the State. There is nothing in the opinion to indicate that she was an unwilling witness. Of course, she was a competent witness either under the common law or under...