Wallace v. State

• Decision Date: 28 February 1966
• Docket Number: No. 43838,43838
• Citation: 183 So.2d 525,254 Miss. 944
• Parties: James WALLACE, Jr. v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 525

183 So.2d 525

254 Miss. 944

James WALLACE, Jr. v. STATE of Mississippi.

No. 43838.

Supreme Court of Mississippi.

Feb. 28, 1966.

Fountain D. Dawson, Greenville, for appellant.

Joe T. Patterson, Atty. Gen., by R. Hugo Newcomb, Sr. Asst. Atty. Gen., Jackson, for appellee.

PATTERSON, Justice.

Defendant was indicted for murder in Washington County. He was found guilty of manslaughter and sentenced to the state penitentiary for a period of three years. He appeals to this Court, assigning as error the following:

(1) The court erred in allowing Carrie Wallace to testify over the objections of the defendant on the grounds that she was the wife of the defendant.

(2) The court erred in denying defendant's motion for a directed verdict when the prosecution rested its case, and in denying a directed verdict after both the State and defense rested.

(3) The court erred in failing to give full credit to the defendant's version of the homicide, there being no other eyewitness thereto.

(4) The verdict of the jury is contrary to and against the overwhelming weight of the evidence and the evidence is insufficient to convict.

On the trial of the cause the defendant's wife, the only eyewitness to the fatal affray other than the defendant, was permitted to testify against him. Her testimony was of utmost importance to the State's case and thus equally damaging to the defendant. The defendant's objections were to no avail and this testimony was considered by the jury. We are of the opinion that this was reversible error.

The provisions of Mississippi Code Annotated section 1689 (1956) are as follows:

Husband and wife may be introduced by each other as witness in all cases, civil or criminal, and shall be competent witnesses in their own behalf, as against each other, in all controversies between them. A criminal prosecution of either husband or wife for contributing to the neglect or delinquency of a child or desertion or nonsupport of children under the age of sixteen (16) years or abandonment of children shall be deemed controversies between husband and wife for the purpose of this section. But in all other instances where either of them is a party litigant the other shall not be competent as a witness and shall not be required to answer interrogatories or to make discovery of any matters involved in any such other instances without the consent of both. (Emphasis ours.)

It is apparent from this section that the defendant's wife could not testify against him without the consent of both unless the controversy was between them, which it was not. In fact, we have held that the mere offering of a wife to testify against her husband is reversible error. In Outlaw v. State, 208 Miss. 13, 20, 43 So.2d 661, 664 (1949) we held:

From these authorities it is seen that this court has repeatedly held that it is improper for the prosecution to call the defendant's wife and offer her as a witness against him. We seriously doubt that there is a prosecuting attorney in this state who does not know this to be the law. A violation of this salutary rule by a prosecuting attorney must be interpreted as motivated by a desire to prejudice the jury against a defendant and tip the scales against him in a close case such as is here presented, with the hope that this court will say on appeal, as it did say in some of the foregoing authorities, that the defendant has been proven guilty notwithstanding the error, and that consequently the error will be held harmless. This is a case in which we cannot confidently so assert. Since every man is entitled to a fair and impartial trial by a jury uninfluenced by anything except competent evidence, and since all reasonable doubts should be resolved in favor of the defendant, the judgment of conviction will be reversed and the cause remanded for another trial.

See also Smith v. State, 193 Miss. 474, 10 So.2d 352 (1942); Davis v. State, 157 Miss. 669, 128 So. 885 (1930); Pearson v. State, 97 Miss. 841, 53 So. 689 (1910); Finklea v. State, 94 Miss. 777, 48 So. 1 (1909); and Garner v. State, 76 Miss. 515, 25 So. 363 (1898). This prohibition of testimony, unless it is consented to by both husband and wife, is so well established in our jurisprudence that it needs no further comment.

The defendant, through the circuit clerk of the county, introduced into evidence the certificate of marriage between Carrie Nelson, the witness, and himself on March 3, 1961. This certificate raises a strong presumption that the marriage was in fact valid. In Fleming v. Fleming, 213 Miss. 74, 84, 56 So.2d 35, 38, 39 (1952) we held:

The appellant was not entitled to a divorce from the appellee on the ground of the appellee's prior marriage to C. T. Ying. In the early case of Powell v. Powell, Adm'r, 27 Miss. 783, the Court said: 'The law favors marriage, and when once solemnized according to the forms of law, will not declare its nullity upon anything less than clear and certain testimony, * * *.' (Emphasis added.)

In 55 C.J.S. Marriage Sec. 43, pages 893-894, it is said, 'In the case of conflicting marriages of the same spouse, the presumption of validity operates in favor of the second marriage. Accordingly the party attacking the validity of such second marriage has the burden of proving such invalidity, even though it involves the proving of a negative; and the burden of showing a valid prior marriage is on the party asserting it.'

This Court has held in many cases that where in any proceeding the validity of a ceremonial marriage is attacked the burden rests on the party alleging its invalidity to prove it. Powell v. Powell, supra; Ladner v. Pigford, 138 Miss. 461, 103 So. 218; McAllum v. Spinks, 129 Miss....