Ulmer v. State

• Decision Date: 09 June 1930
• Docket Number: 28667
• Citation: 128 So. 749,157 Miss. 807
• Parties: ULMER v. STATE
• Court: Mississippi Supreme Court

128 So. 749

157 Miss. 807

ULMER v. STATE

No. 28667

Supreme Court of Mississippi

June 9, 1930

Division B

WITNESSES. Wife is incompetent to testify against husband in criminal case, otherwise than as permitted to do so under common law wife was not competent witness against husband in prosecution under law relating to desertion or refusal to provide for support and maintenance of child (Laws 1928 [Ex. Sess.] chapter 89).

The wife is incompetent to testify against her husband in criminal case, otherwise than as permitted to do so under the common law, and her testimony under the common law, was limited to injuries to her person, such as assault, etc committed during the marriage relation. Therefore a wife is not a competent witness in a prosecution under chapter 89 Laws of 1928, Extraordinary Session.

HON. J D. FATHEREE, Judge.

APPEAL from circuit court of Greene county HON. J. D. FATHEREE, Judge.

C. O. Ulmer was convicted under the law relating to desertion or refusal to provide for the support and maintenance of his child, and he appeals. Reversed and remanded.

Judgment reversed and remanded.

E. F. Coleman, of Purvis, for appellant.

The court erred in permitting the wife of the defendant to testify on the trial of the said defendant, over the objection of the said defendant.

The court erred in overruling the motion of the defendant to exclude the testimony of the said witness, Mrs. C. O. Ulmer, the wife of the said defendant.

Sec. 1916, Code of 1906, sec. 1576, Hemingway's Code 1917; McQueen v. The State, 104 So. 168; Doss v. State, 126 So. 197; State v. McMullins, 126 So. 662.

W. A. Shipman, Assistant Attorney-General, for the state.

If the testimony of Mrs. Ulmer to the material facts alleged in the indictment was the only evidence we have of such facts in the record, it is likely that this court would reverse the case. It was manifest error in the court below to permit the wife of the appellant to testify as a witness against him.

McQueen v. State, 139 Miss. 457, 104 So. 168; Doss v. State, 126 So. 197; State v. McMullins, 126 So. 662.

The error, however, does not require a reversal of this case by the appellate court. The guilt of the appellant is shown by the testimony of other witnesses than that of Mrs. Ulmer.

OPINION

Ethridge, P. J.

At the May, 1929, term of the circuit court, the appellant was indicted by the grand jury of Greene county, under chapter 89, Laws of 1928, Extraordinary Session, providing: "That any parent who shall desert or wilfully neglect or refuse to provide for the support and maintenance of his or her child or children under the age of sixteen years, leaving such child or children in destitute or necessitous circumstances, shall be guilty of a felony and on conviction thereof, shall be punished by a fine of not less than twenty-five dollars, nor more than five hundred dollars or by imprisonment in the penitentiary not exceeding two years, or both, in the discretion of the court."

The appellant was convicted and sentenced to the penitentiary, from which judgment he appeals.

The indictment was demurred to, and the overruling of such demurrer was assigned as error, but was not argued in the brief, hence we do not pass upon the sufficiency of the indictment.

On the trial of the case the wife of the appellant was introduced as a witness,...