State v. Woodrow.

• Decision Date: 12 December 1905
• Citation: 58 W.Va. 527
• Court: West Virginia Supreme Court
• Parties: State v. Woodrow.

58 W.Va. 527

State

v.Woodrow.

Supreme Court of Appeals of West Virginia.

Submitted September 15, 1905.

Decided December 12, 1905.

1. Criminal Law Witness Husband and Wife.

A wife is not a competent witness against her husband in a prosecution for crime, (p. 528.)

2. Criminal Law Husband and Wife Witness.

Quaere. Is a wife or a husband a competent witness now against the other in a prosecution for crime committed against such witness, (p. 531.)

3. Criminal Law Husband and Wife Witness-Murder of Child.

A wife is not a competent witness against her husband in a prosecution against him for the murder of his infant child of the age of fourteen months, though the same pistol ball killed the child and wounded the wife, while the child was in her arms. (p. 530.)

4. Indictment Motion to Quash.

An indictment cannot be quashed because it rests, in whole or part, on incompetent evidence, (p. 532.)

5. Homicide Instructions.

Refusal of an instruction, on a trial for murder, giving the findings in the power of the jury, including one of involuntary manslaughter, is not error when no evidence in the case tends to show that degree of homicide. Such instruction should not be given, (p. 534.)

0. Homicide Evidence.

Evidence of experiment to test the capacity of a child to fire a pistol is admissible to repel evidence of one accused of murder going to show that the child fired the pistol causing the homicide, (p. 534.)

Error to Circuit Court, Mineral County. AVilliam Woodrow was convicted of murder in the second degree, and brings error.

Reversed.

Frank C. Reynolds, for plaintiff in error. C. W. May, Attorney General, for the State. Brannon, President:

William Woodrow was indicted in Mineral county for the murder of his child, Ruth Elizabeth Woodrow, and was sentenced to the penitentiary for eight years upon a verdict of murder in the second decree. The deceased was a baby of fourteen months age, and was in the arms of its mother, at her breast, when a pistol shot killed it, the ball passing through the baby's head, and wounding the mother, according to her evidence. The accused offered a plea in abatement to quash the indictment on the ground that his wife had been examined before the grand jury; but the plea was rejected. On the trial the wife of the accused gave evidence at the instance of the State against her husband, over his protest.

Was the wife a competent witness against him? Elliott on Evidence, Vol. 2, § 736, states the law thus: "When the husband or wife was the defendant in a criminal prosecution the other was, at common law, incompetent either for or against the accused. The marriage relation, however, must be a lawf ul one or the rule generally has no application. And if the offence was committed by husband or wife against the other, the injured party is usually a competent witness, either for or against the accused, both at common law and under the statutes." That late work of great practical value cites many authorities for its text. Bishop's New Grim. Procedure, Vol. 1, § 1153, says that: "If personal violence is inflicted on the wife by the husband, she from necessity may, or if required must, testify to it in a criminal proceeding against him for the battery; and he may do the like if she beats him." This ancient rule of the common law is stated in all the books. The sole question in this case is, Does this case come within the exception to the rule; that is, was the prisoner's act of shooting the child a crime against the wife? It was not violence to her person. It was not a crime against her person corporeally. Such it has to be under this exception. It is true that there has been considerable difference of opinion as to what instances fall within this exception. Some cases hold that bodily violence to the wife is not the only case under the exception. For instance, cases of bigamy, and other cases, have been held to fall within the exception. The books must be resorted to for full discussion. It will be found that though cases where no actual violence constituting assault and battery upon the wife have been held to fall within the reason of the exception, yet they are cases which directly affect the legal right of the wife, rights going along with her personality or person, as an individual separated from all other persons. However, I can safely say that the great bulk of American decision is, that to come within the exception the case must be one of personal violence to the spouse. Basset v. U. 137 U. S. 496; Baxter v. State, 53 Am. St. R. 720; Crawford v. State, 67 Id. 829; Commonwealth v. Sapp, 29 Id. 406. And I repeat that those cases, like bigamy and others, that do not actually involve violence to the person, which are held within the exception, are cases where the wrong is to the individualparticularly and directly injured by the crime for which the husband is prosecuted. Bill v. People, 41 Am. St. R. 254. But the instances mentioned I mean the cases not requiring actual violence to person are confined to a few states. The weight of authority is otherwise, requiring personal violence or a restraint of liberty to the wife, restraint of liberty being a wrong to her person. Basset v. U. S., 137 IT. S. 496. The act must touch her person, or her personal individual right, as a person distinct and individualized from the balance of the community, to come under the exception spoken of. An enormous wrong this murder was to the mother in a moral point of view, in an emotional point of view, in a sentimental point of view; in a pathetic point of view, under emotions of the heart which move human beings, owing to the relation of mother and child. We are apt to consider this terrible crime as a greater one against the mother than to any other living human being; still, in a physical point of view, the homicide did not touch the person of the wife, but was only a crime against her as one member of the community; I mean in the eye of the law. Remember that Wooclrow was tried for killing the child, not for shooting his wife. On a trial for shooting his wife, she could, under the exception stated, give evidence against her husband, and could prove, if material, not only the shooting of herself, but also the shooting of the child, as part of the res gestae; but on his trial for killing the child the fact that the one ball did violence to both mother and child, does not alter the case. The homicide of the child is one distinct crime; the shooting of the mother another distinct crime. The close connection of the two in time and circumstances does not blend the results of the ball, and make the killing of the child a personal or corporeal violence to the mother. To come under the exception the crime must be against the mother in a legal point of view. The rule of evidence as to res gestae will not admit the wife as a witness. Under that rule the question is, not the competency of the witness proving the things clone or said, but whether the things themselves are proper to go before the jury, even though proven by a competent witness; whereas, here it is a question whether the witness is a proper one to prove the things done or said, admitting those things to be proper evidence, if deposed to by a competent witness. Necessity, the want of another witness, is pleaded for the admission of the wife's evidence in this case. That was the parent of the common law exception. But that necessity may often arise and call as loudly as in this case. Suppose the husband should kill a grown child in the privacy of the home, there being no other witnesses of the fact but the wife. Would this necessity admit her evidence? Suppose he would there kill the wife's grown sister or any one else. Would she be competent? I say not. If there were other witnesses present, would she be competent? I suppose not, as the necessity would not then exist. Then, the evidence would be competent or incompetent according as there was, or was not, another witness than the wife. Though we concede that the necessity meant by law in this instance is not merely necessity for some witness, but the necessity to protect the spouse, still that would not admit the wife's evidence in this case. It is suggested that tender age of the person injured causing incapacity to give evidence, calls for the wife's evidence. Does it depend on age? If so, the wife's competency or incompetency would rest on the age of the person injured. If a husband should kill a man in a field or highway, none but the wife of the murderer being present, would she be a competent witness against her husband? Surely not. Yet the cry of justice would be as loud in that case as in "the present case. The necessity would be just as great. The accidental circumstance that no eye saw the deed but that of wife and husband would, in such case, just as much create a necessity for the wife's evidence as in this case. The ancient rule of the common law forbidding evidence of one spouse against the other stands intact today. Our Code in chapter 152, section 19, reads thus: "In any trial or examination in or before any court or officer for a felony or misdemeanor, the accused shall, at his or her own request, (but not otherwise) be a competent witness on such trial and examination. The wife or husband of the accused shall also, at the request of the accused, but not otherwise, be a competent witness on such trial and examination." The object of this statute, in its latter clause, was to make the wife or husband a competent witness for the other, at his or her request. It is an enabling" statute, because before it came neither could use the evidence of the other. It enlarges the right of the accused by giving him or her the right to introduce his or her spouse as a witness; but it does not enlarge the right of the State. Before that statute the State could not introduce the wife against the husband, or the husband against the wife; neither can it do so since that statute. That statute does not touch this...