State v. Rodriguez

• Decision Date: 07 December 1959
• Parties: , 13 O.O.2d 79 STATE of Ohio, Appellee, v. RODRIGUEZ, Appellant.
• Court: Ohio Court of Appeals

Page 307

110 Ohio App. 307

169 N.E.2d 444, 13 O.O.2d 79

STATE of Ohio, Appellee, v. RODRIGUEZ, Appellant.

Court of Appeals of Ohio, Fulton County.

Dec. 7, 1959

Syllabus by the Court

1. The common-law rule is that, where a husband or wife is prosecuted for a criminal offense, his or her spouse is incompetent as a witness for the prosecution, except where the offense alleged is one against the person of the testifying spouse. Section 2945.42, Revised Code has adopted, with

some qualifications, the doctrine of the common-law rule.

2. Where a wife was present when defendant husband shot the deceased, it is error to permit the wife to testify for the prosecution, where timely objection is made to such testimony.

3. An accused has a constitutional right in a criminal case to meet the witnesses face to face, which includes the right to cross-examine all witnesses not called by himself. Where defense counsel reserves the right to further cross-examine a witness for the state, it is error to deny the right of the defendant to thereafter resume full and fair cross-examination.

4. In a trial for manslaughter, it is error to permit cross-examination of defendant, over defendant's objection, pertaining to an arrest and conviction of a city automobile traffic ordinance prohibiting crossing a yellow line in the street.

5. Where the court couples an instruction to the jury on the defense of accidental shooting with a defense of self-defense and used such language as to indicate the court's thinking that self-defense is the sole valid defense in the case, it is not only misleading and confusing to the jury but error prejudicial to the accused, in that it virtually withholds from the jury consideration of the defense of accidental death.

6. The climate of the trial of a case should be conducive to even-handed justice. Comments by the court in the presence of a jury in overruling objections of counsel should not exhibit an excess of feeling as would not comport with that degree of judicial equanimity and composure requisite to the decorum of a fair and impartial trial.

7. Upon examination of witnesses who can not understand or speak the English language, the interpreter should not be permitted to give his individual conclusions with respect to answers of the witness but should give a literal interpretation of the language employed by the witness.

Charles M. Ham, Wauseon, for appellant.

John H. Barber, Pros. Atty., Wauseon, for appellee.

PER CURIAM.

The defendant was found guilty of manslaughter. The court overruled his motion for new trial and sentenced him to confinement in the penitentiary. This is an appeal on questions of law from that sentence.

Several grounds are assigned for the reversal of the conviction:

1. The trial court erred in overruling the defendant's challenge for cause on the voir dire examination of the prospective jurors.

2. Error in permitting the wife of the defendant, over the objection of the defendant, to testify against the defendant and for the state of Ohio.

3. Error in overruling the defendant's several objections to testimony by state's witness Lester J. Trigg as to a conversation between him and state's witness Santos Rodriguez.

4. Error in voluntarily striking the defendant's question as to the character and reputation of the decedent.

5. Error in refusing the defendant the right to cross-examine the plaintiff's witness Santos Rodriguez, after his right to do so had been previously reserved.

6. Error in permitting the state of Ohio to prove, over the defendant's objection, that the defendant had been arrested and convicted of violating a traffic ordinance.

7. Error in instructing the jury, before argument, and over the defendant's objection, that 'the defense of accidental shooting is inconsistent with the theory of self-defense.'

8. Error in permitting the plaintiff to introduce into evidence, over the defendant's objection, the plaintiff's exhibit 'R,' being the report of the police department of Toledo, Ohio, bearing the name of E. E. Clancy and the initials 'E. C.'

9. Error in failing to rule or comment upon the defendant's assignment as improper conduct of the prosecutor's statement in his closing argument: 'I think this man is guilty of the crime of manslaughter.'

10. Error in charging the jury that self-defense 'is the only thing in this case which in any sense would justify the unlawful killing of another human being' and that 'the only possible justification is the defense alleged here by Mr. Ham of possible self-defense.'

11. The verdict and judgment are contrary to law and against the manifest weight of the evidence.

12. Error in overruling the defendant's motion for new trial.

We are of the opinion that the chief assignments of error numbered 2, 5, 6, 7 and 10 are well taken and require a new trial, and we will discuss them in that order.

As to assignment of error No. 2, the trial court erred in permitting the wife of the defendant, over the objection of the defendant, to testify against the defendant and for the state of Ohio.

The pertinent provisions of Section 2945.42 of the Revised Code are:

'* * * 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, * * *. Husband and wife shall not testify concerning a communication made by one to the other, or act done by either in the presence of the other, during coverture, unless the communication was made or act done in the known presence or hearing of a third person competent to be a witness, * * *.'

The common-law rule is that, where a husband or wife is prosecuted for a criminal offense, his or her spouse is incompetent as a witness for the prosecution, except where the offense charged is one against the person of the testifying spouse. The Ohio statute has adopted, with some modifications, the doctrine of the common-law rule.

In construing the statute in State v. Goodin, 60 Ohio App. 362, 364, 21 N.E.2d 482, it is stated:

'It is clear that this section makes the wife a competent witness on behalf of the husband, except as to certain confidential communications or acts, not made in the known presence of a third person competent to be a witness, excluding from such exception prosecutions for certain specific crimes named in the section.

'It is also clear that the section makes the wife a competent witness against her husband in prosecutions or proceedings against him for personal injuries inflicted by him upon the wife, for bigamy, failure to provide for his children, and for violation of Sections 13008 and 13009, General Code.

'There is certainly no language in this section which can be considered an express provision making the wife a competent witness against the husband generally, that is, in all categories of cases, civil and criminal. The language seems to exclude the possibility of construing it as implying in intention to clothe the wife with a general competency as a witness against her husband The courts have not found any such general intent in the language used.

'The predecessor of this section was construed in State v. Orth, 79 Ohio St. 130, 86 N.E. 476, 22 L.R.A.,N.S., 240. Since that decision the section has been amended by providing for the competency of the spouse as a witness in certain enumerated cases. However, the general provision remains the same. The rule of construction, applied to the section as it was then, leads to the same conclusion when applied to it in its present form. However, there is this additional sign of the legislative intent. Having provided that the spouse was competent as a witness in specifically enumerated cases shows an intent not to remove the disqualification in the cases not mentioned. In State v. Orth, supra, the court said, 79 Ohio St. at pages 134 and 135, 86 N.E. at page 477, 22 L.R.A.,N.S., 240:

"The only proper effect of the statute (section 7284) if interpreted to mean what it says--and its language being plain, only such interpretation is permissible--is: (1) The removal thereby of the interest disqualification, and of disability by reason of the conviction of a crime; (2) To make husband and wife competent witnesses on behalf of each other in all criminal prosecutions; (3) To enact and provide that the rule of evidence as to confidential or privileged communications shall not apply, in case of personal injury by either the husband or wife to the other, or in case of the neglect or cruelty of either to their minor children under ten years of age; but that in such cases, husband or wife, testifying on behalf of each other, shall be competent to testify to communications made by one to the other, or acts done by either in the presence of the other, although no third person was present. That the Legislature did not intend by the adoption of this statute to abrogate, or modify, the firmly established general rule of the common law that husband and wife are incompetent to be witnesses against each other in criminal cases, is at once evident when we consider that, with the whole subject before it for consideration, it enacted, by positive provision and in express terms, that husband and wife shall be competent witnesses on behalf of each other, but declined to thus enact that they should be competent witnesses against each other. If it had been the purpose and design of the Legislature to so relax or change this rule of the common law as to permit husband and wife to testify against each other in the cases in said statute specified, it would doubtless have so declared in express and appropriate terms, and it would not have left this purpose to be ascertained or discovered by interpretation or supplied by mere conjecture."

In the case before us, the wife was present when defendant husband shot the deceased. In Locke v. State, 33 Ohio App. 445, 169 N.E. 833, it is held...