State v. Orth

• Decision Date: 01 December 1908
• Docket Number: 11290
• Citation: 79 Ohio St. 130,86 N.E. 476
• Parties: The State Of Ohio v. Orth.
• Court: Ohio Supreme Court

86 N.E. 476

79 Ohio St. 130

The State Of Ohio v. Orth.

No. 11290

Supreme Court of Ohio

December 1, 1908

Wife not competent witness against husband - Charged with failure to provide for children - Section 3140-2, Revised Statutes.

The wife is not a competent witness to testify on behalf of the state and against her husband on the trial of the latter upon an indictment charging him with a violation of Section 3140-2, Revised Statutes.

The facts of this case are stated in the opinion.

Mr. W L. David, prosecuting attorney, for plaintiff in error, cited and commented upon the following authorities:

Whipp v. State, 34 Ohio St. 87; Underhill on Criminal Evidence 230, 231, 232, 233; State v. Smith, 9 Ohio Dec., 749; Hanley v. State, 5 Cir. Dec., 488; Admx. of Tracy v. Admr. of Card 2 Ohio St. 431; Henry v. Trustees, 48 Ohio St. 671; Mannix v Commissioners, 43 Ohio St. 210; Sawyer v. State, ex rel., 45 Ohio St. 343; Yost, Treas., v. Brewing Co., 20 C. C., 32; 66 O. L., 303; 86 O. L., 161; 91 O. L., 50; Section 7284, Revised Statutes.

Mr. John E. Betts, for defendant in error, cited and commented upon the following authorities.

Whipp v. State, 34 Ohio St. 87; Benedict v. State, 44 Ohio St. 679; Haberty v. State, 8 C. C., 262, 31 W. L. B., 367; Black on Interpretation of Law, 35, 37, 185; 86 O. L., 161; 91 O. L., 50; Section 7284, Revised Statutes.

CREW J.

At the September term, 1907, of the Court of Common Pleas of Hancock county, the defendant, Arthur Orth, was indicted by the grand jury of said county under Section 3140-2, Revised Statutes for unlawfully neglecting and refusing to provide his minor children, Edna Orth and Harter Orth, aged respectively nine and five years, "with necessary and proper home, care, food and clothing." Thereafter at the February term, 1908, of said court of common pleas, said indictment duly came on for trial, and the state to maintain the issue on its part and to sustain and prove the allegations and charge in said indictment, called as a witness for the state, Mrs. A. E. Orth, wife of the defendant. Thereupon, after certain preliminary questions had been put to and answered by her, from which it was made to appear that she was then the lawful wife of said Arthur Orth, the defendant's counsel interposed an objection to her as a witness, on the ground that, in this case, she was incompetent to testify as a witness against her husband. Said objection was upon consideration sustained by the court, to which ruling the prosecuting attorney excepted. Thereupon, the state, without calling any other witness, or offering any evidence in support of the charge made in said indictment, rested its case; whereupon the court, on motion of counsel for the defendant, directed the jury to return a verdict of not guilty, which was accordingly done. The prosecuting at- torney on behalf of the state, under favor of Section 7305, Revised Statutes, presents to this court his exception to the ruling and decision of the court of common pleas, in order that he may secure a decision which shall determine the law to govern in similar cases. Upon the present record, the only question presented to this court for determination is: Was Mrs. Orth, wife of the defendant, competent to testify as a witness for the state and against her husband, on the trial of the latter on the indictment returned against him in this case? It was the well known and well settled rule of the common law, adopted and followed in this state, that husband and wife were not competent witnesses for or against each other in any criminal case, except in prosecutions for personal injury committed by the one upon the other, in which latter case it was held, that from necessity, the injured party was a competent witness. 1 Archbold Crim. Pl. & Pr., 472; Bishop's Crim. Procedure, Section 69; Steen v. The State, 20 Ohio St. 333; Whipp v. The State, 34 Ohio St. 87. The first statutory modification of this common law rule in Ohio is found in the act of the general assembly passed March 28, 1889, 86 O. L., 161. This statute of 1889 was subsequently amended by the enactment of what is now Section 7284, Revised Statutes, which section provides as follows: "No person shall be disqualified as a witness in any criminal prosecution by reason of his interest in the event of the same, as a party or otherwise, or by reason of his conviction of any crime; and husband and wife shall be competent witnesses to testify in behalf of each other in all criminal prosecutions; but such interest, conviction or relationship may be shown for the purpose of affecting his or her credibility. But husband or wife shall not testify concerning any communication made by one to the other, or act done by either in the presence of each other during coverture, unless the communication was made or act done in the known presence or hearing of a third...