Dowdy v. StateDowdy v. State
- Reporters:
- , , ,
- Before:
- Prewitt
delivered the opinion of the Court.
Thе defendant, L. A. Dowdy, was convicted of unlawfully carrying- a pistol аnd punishment fixed at a fine of $50 and nine months in the workhouse.
The defendant is a member of the colored race and was cоnvicted on the testimony of his wife, Mary Lou Dowdy. She testified that she аnd her husband lived on Shannon Street and on the day of the allegеd offense, when she came home from her place of work, defendant jumped on her and beat her; that she ran out оf the house into the street with her husband in pursuit. She further testified that the dеfendant told her to stop and threatened to shoot her. Shе looked hack and saw that her husband had a pistol in his hand. She thеn ran faster. The defendant caught up with her and forced her tо return to the house. The defendant did not testify nor did he offer any evidence in his behalf.
It is insisted that her testimony should not have been аdmitted on account of the fact that she is the wife of the defendant and the statements made by her were privileged communications and that the introduction of these statements were therefore inadmissible. On this point we quote from the following authorities:
“To be privileged, the subject of the communication must be one that would not have been disclosed except for the marital relation, as privilege extends only to confidеntial communications, and does not *214cover topics incident to general intercourse or facts which come tо the knowledge of the testifying spouse by means equally accessible to persons standing in the marital relation.” Wharton’s Criminal Evidеnce Sec. 1250.
“As a general rule, to make a communicаtion between husband and wife privileged, it must he confidential in its naturе, or at least not obviously of a different character. Wherever a communication, because of its nature or the circumstances under which it was made, is obviously not intended to he confidential, it is not privileged.” 58 Am. Jur., Witnesses, Sec. 380.
“The essence of the privilege is to protect confidences only. This is inevitably required by the very nature of this class of privileges (ante, Sеc. 2285). The purpose is to insure subjectively the free and unrestrained privacy of communication, divested of any apprehension of compulsory disclosure; and if the communicаtion is not intended to be a private one, the privilege has no application to it. ’ ’ Wigmore on Evidence, Third Edition, Sec. 2336.
So it can he said without question that these statements made by thе witness were in no sense privileged nor were they confidential in their nature. Furthermore, what took place was on a public street in the city of Memphis and the transaction was not supposed to he confidential.
It is further insisted that it was error to рermit the state to place two pistols on the table in view of the jury prior to the time these pistols were offered in evidence. We fail to see how any prejudice could rеsult. Under the only testimony introduced, the jury could not *215possibly have done anything other than return a verdict of guilty.
We have considerеd all the assignments of error and find them without merit. The judgment of the lower court is affirmed.