94 Ala. 53 | Ala. | 1891
— The sole exception reserved on this record goes to the action of the trial court in compelling the defendant’s wife to testify on his trial upon a charge of assault and battery committed upon her person. The right oí the wife to testify in such case, her competency as a witness, is admitted. We do not think there can be any doubt of the power of the •court to compel her to testify. She is made competent for her own protection not as an individual simply, but as an individual member of society, and that society — the public — has an interest in her testimony, to the end that crime may be punished, which is distinct irom any .purely personal right of hers, and which she can not waive. Upon considerations of this character the law has come to be well settled in recognized texts, and by adjudications of courts of high standing, that the wife is not only competent in such cases, but is compellable to testify. Mr. Justice Stephens, in his Digest of the Law of Evidence, which is incorporated bodily in the American and English Encyclopoedia of Law, as “containing the most clear and concise statements of the law of evidence extant,” declares the rule to be, “that in any criminal proceeding against the husband or wife, for any bodily injury or violence inflicted upon his or her wife or husband, such wife or husband is competent, and compellable to testify.” — 7 Am. & Eng. Encyc. of Law, p. 102. And .so it has been expressly declared in the following well considered cases: Turner v. State, 60 Miss. 351; s. c., 45 Am. Rep. 412; Dumas v. State, 14 Tex. Ct. App. 465; Bramlette v. State, 21 Tex. Ct. App. 611; s. c., 57 Am. Rep. 622.
Moreover, the wife’s competency being conceded, and her testimony being relevant, it is not perceived that any legal wrong is done to the defendant by compelling her to testify. As was said in Turner v. State, supra, “If the proposition be [as is contended in this case] that the wife has only a privilege of testifying or not, as she may elect, it is clear that the appellant can not assign for error the action of the court in compelling her to give testimony over her objection; for, if the action of the court be error, it is the privilege of the witness, and not the legal right or immunity of the defendant.
In State v. Neill, 6 Ala. 685, may be found expressions which seem to give importance to the wife’s willingness to-testify in cases of this sort; and so, in Cotten v. State, 87 Ala. 75, and Woods v. State, 76 Ala. 35, some basis for an argument opposed to our conclusion on the first point considered may be afforded; but, in the first case, the language used was a mere dictum of the court, employed casually and arguendo only; in the last two, what was said had no reference to the competency of the wife to testify against her husband,, when an offense against her person is charged; and in 'all of them the declarations of the court were palpably made in view or with reference to the principles which obtain in cases-where the husband’s rights are only collaterally involved, and, of course, where the element of violence toward the person of his wife is not the gravamen of the proceeding. There is nothing in any of these cases which militates against the power of the court to compel the wife to testify upon the trial of the husband on a charge of assault and battery committed upon her.
The judgment of the City Court is affirmed.