State v. Reynolds

• Citation: 26 S.E. 679,48 S.C. 384
• Parties: STATE. v. REYNOLDS.
• Decision Date: 01 March 1897
• Court: South Carolina Supreme Court

26 S.E. 679

48 S.C. 384

STATE.

v.REYNOLDS.

Supreme Court of South Carolina.

March 1, 1897.

Criminal Law—Time of Offense — Evidence— Husband and Wife—Competency as Witnesses.

1. On a trial for incest the state may show that the offense was committed seven years before the date alleged in the indictment.

2. Under Code Civ. Proc. § 5, denning actions to include criminal prosecutions, and section 400, providing that husband or wife shall be competent to testify "in any action in any court, " a wife may testify against her husband in criminal prosecutions, except as to confidential communications made during marriage.

Appeal from common pleas circuit court of Fairfield county; Watts, Judge.

Joseph Reynolds was convicted of incest, and appeals. Affirmed.

J. E. McDonald, for appellant.

J. K. Henry, for the State.

JONES, J. The appellant Joseph Reynolds, was convicted and sentenced, under an indictment charging him with having carnal intercourse with his own daughter on the 15th day of March, 1894, and on divers other days both before and since that date up to the day of the finding of the indictment first Monday in June, 1890. The record raises but two questions:

1. Did the circuit judge err in permitting the state to offer testimony to show that the offense was committed seven years prior to the date laid in the indictment? We think not. It is well settled that it is not necessary to prove the precise day, or even year, laid in the indictment, except where time enters into the nature of the offense, or is made part of the description of it State v. Anderson, 3 Rich. 17G; State v. Porter, 10 Rich. 148; State v. Branham, 13 S. C. 392. There is no statute of limitation in this case, and it is clear that time is not of the essence of the offense charged.

2. Was the wife of the defendant a competent witness against him in this case, and did the circuit judge err in permitting the wife to testify against her husband? At common law, neither husband nor wife was competent to testify for or against the other, except in certain exceptional cases, not relevant now to specify. It is necessary, therefore, to ascertain if the common-law rule has been changed in this state by statute. It is provided in section 400 of the Code of Civil Procedure as follows (subdivision 1): "In any trial or inquiry in any suit, action or proceeding in any court, or before any person having by law or consent of the parties authority to examine witnesses or hear evidence, the husband or wife of any party thereto, or of any person in whose behalf any such suit, action, or proceeding is brought, prosecuted or opposed or defended, shall, except as hereinafter stated, be competent and compellable to give evidence, the same as any other witness on behalf of any party to such suit, action or proceeding." Subdivision 2: "No husband or wife shall be compellable to disclose any confidential communication made by one to the other during their marriage." The Code, in section 4, defines actions to be of two kinds, — civil and criminal; and in section 5 it is stated, "A criminal action is prosecuted by the state, a party, " etc. It will be observed that section 400 speaks of any suit action, or proceeding brought, prosecuted, opposed, or defended in any court. It is clear, therefore, that the primary and natural meaning of the terms used include a prosecution or criminal action. It cannot be said that this provision in the Code of Civil Procedure relates only to civil proceedings, for in this section 400 it is expressly provided that ...