McQueen v. State, 104 So. 168

McQueen v. State

104 So. 168 | Miss. | 1925

Lead Opinion

^* Headnotes 1. Witnesses, 40 Cyc., pp. 2210, 2219; On competency of husband or wife as witness against the other in criminal case, see notes in 2 L.R.A. (N.S.) 862; 22 L.R.A. (N.S.) 240; 41 L.R.A. (N.S.) 1213; 28 R.C.L., pp. 480, 481; 2. Witnesses, 40 Cyc., p. 2221; Bigamy or polygamy by one spouse as a crime against the other spouse within statute relating to competency of husband or wife as witness against the other, see note in 4 A.L.R. 1072; 28 R.C.L. p. 485; 3 R.C.L. Supp., p. 1577, 4 R.C.L. Supp. 1825. William McQueen appeals from a conviction on a charge of bigamy. The appeal will be disposed of by the *468 decision of one question, and that is whether or not the wife may be introduced by the state against the husband to prove the former marriage, where the husband is on trial for bigamy.

It is well settled that under the common law one spouse could not be introduced to establish a crime against the other, except where the crime was committed against the other spouse, such as assault and battery and like offenses; but we have a statute (section 1916, Code of 1906; section 1576, Hemingway's Code) which provides as follows: "Husband and wife may be introduced by each other as witnesses in all cases, civil or criminal, and shall be competent witnesses, in their own behalf, as against each other, in all controversies between them."

It is the contention of the state that it was competent to introduce Mrs. McQueen, the wife of the appellant, to establish their former marriage at New Orleans, because the charge of bigamy is a "controversy between them" and within the above statute, which allows testimony by one spouse against the other. And the attorney-general cites and relies upon the case ofMcRae v. State, 104 Miss. 861, 61 So. 977, to support his contention.

We are unable to agree with the attorney-general that the case before us comes within the exception of the statute, because we do not think it is controversy between the husband and wife within the meaning of the statute.

The crime of bigamy is wholly in the nature of a public wrong, and does not involve the former wife in the sense of a controversy between them, and may not be prosecuted by her. It might be in some cases that the wife would disbelieve the charge and would have no desire or interest in convicting her husband as having done a wrong to her. Could she then be put on against the husband? We cannot see wherein such a prosecution can be viewed as a controversy between the husband and wife as intended by the statute.

The statute, supra, making an exception, has reference to civil controversies between the husband and wife, or *469 where one of them had offended the other within the exception named. There might be a controversy between the husband and wife within the meaning of the statute, where the prosecution of one by the other was quasi-criminal, such as the prosecution of the husband by the wife for vagrancy, as in the McRae case, supra. In that case the court said: "While she was proceeding under the regulation, as provided by the statute for relief in such cases, yet in effect there is a controversy between the husband and wife. The subject of this controversy is whether the husband shall support his family. We believe that this is such a controversy as to render competent the testimony of the wife in this case."

It seems clear to us the court was careful to say that the wife might testify against the husband on a charge for vagrancy, where she was interested in compelling the husband to support her and her children, because this prosecution is both civil and criminal in its character, and is, in that way, a controversy between the husband and wife; but not otherwise.

But the case before us is one where the conviction of the husband could not result in any material benefit to the wife, unless we say that desire for revenge makes it a controversy between the husband and wife. We do not think the statute was intended to make an exception in such a case. The conviction of the husband, it seems to us, would be wholly in satisfaction of a public wrong, and not a civil or quasi-criminal wrong toward the wife as contemplated by the statute.

In view of these conclusions, the judgment of the lower court is reversed and the case remanded, for a new trial.

Reversed and remanded.

Dissenting Opinion

The holding of the majority opinion in my judgment is so unsound and far reaching in its effects that I feel impelled to dissent therefrom. Appellant's wife was *470 competent as a witness against him in this case, both under the statute and at common law.

The statute makes the wife a competent witness against her husband "in all controversies between them." This court held inTurner v. State, 60 Miss. 351, 45 Am. Rep. 412, and McRae v. State, 104 Miss. 861, 61 So. 977, that a wife was a competent witness against her husband in a criminal prosecution of the latter for a wrong done her constituting the crime for which he was being prosecuted. The Turner case was a prosecution of the husband for an assault and battery on the wife, and the McRae case was a prosecution of the husband for the crime of vagrancy, consisting of the desertion of his wife and child without just cause, leaving them without support. The court necessarily held in those cases that, where the crime for which the husband was being prosecuted consisted of a wrong done the wife, there was a controversy between them within the meaning of the statute. It was expressly so held in the McRae case. The statute is not confined to civil controversies. It covers criminal controversies, provided the crime under inquiry consists of a wrong done the wife by the husband.

In the Turner case, in discussing the reason of the common-law rule making the wife incompetent, the court said that it was based on the unity of person and interest subsisting between husband and wife, and also out of the regard which the law had for the harmony of the marital relation. Wigmore in his work on Evidence, vol. 4, section 2239, discusses the common-law rule and the exceptions thereto. The facts of this case bring it clearly, it seems to me, within the exception to the common-law rule of the incompetency of the wife. It is true we have a case here, not where the husband has committed an assault and battery on his wife, but he has done worse. He has done her a greater wrong, it seems to me. He has not only deserted her and refused to support her, as was done by the husband in the McRae case, but in addition he has married another woman. To say that a husband who has deserted his wife and married *471 another woman without cause and without authority of law has not wronged his wife is beyond me. It is hard to conceive how a greater wrong could be done a wife.

COOK, J., concurs in these views.