61 So. 977 | Miss. | 1913
delivered the opinion of the court.
R. L. McRae was convicted of vagrancy, consisting of his abandonment of his wife and child, without just cause, leaving them without support. The prosecution was under section 5055, Code of 1906, which prescribes who are vagrants, and subdivision “k” of that section, which declares: “Every person who shall abandon his wife or family, without just cause, leaving her or them without support, or in danger of becoming a public charge.” R. L. McRae married Miss Lula Stewart, in Meridian, on February 19, 1909, and on March 30th thereafter a child was born. lie lived with his wife until May 12, 1909, when he took her to her father’s house and left her. Shortly after the separation he filed suit for divorce, and his wife filed an answer and cross-bill, praying for alimony. At the time of the trial the question of alimony was settled by the payment to Mrs. McRae of two hundred dollars, whereupon she withdrew her objection to the divorce. The chancellor heard the testimony in the case and refused to grant McRae a divorce. In 1911 he was prosecuted under the charge of vagrancy for failure to support his family, and in settlement of his case eight dollars per month for a period of six months was paid for the support of the child.
Appellant contends that the statute of limitations of two years bars the present prosecution. The evidence shows that in 1911 he contributed to the support of his family; that is, he paid a certain amount, which it is stated, was for the support of the child, for a term of six months. Under the facts in this case, we think the trial court did not err in holding that this prosecution was not barred by the statute of limitations. We have recently construed this statute in the case of Vance v. State, 61 South. 305, and we now make reference to the opinion in that case. We therein held that the failure by the husband and father, who is the head of the family, to support his child, without just cause, is a violation of the statute.
It is contended by appellant that the court erred in admitting the testimony of Mrs. McBae in this case against her husband. The record shows that no objection was made to Mrs. McBae testifying when she was first introduced on the part of the state, and that she was then cross-examined at some length by attorneys for her husband, the appellant. "When she was introduced in rebuttal, after McBae had testified, in which testimony he claimed that he was not the father of the child, and generally attacked the character of his wife, an objection was made to her testifying and a motion was made to exclude her testimony, given upon the first examination, as incompetent, because against her husband. The court overruled the objection and motion. At common law the husband and wife were not competent as witnesses for or against each other. In stating the reason for this rule, George, O. J., in the case of Byrd v. State, 57 Miss. 243, 34 Am. Rep. 440, delivering the opinion of the court, said: “This incompetency was placed by the court upon two grounds: One, the unity and identity of husband and wife in interest, so that when one was excluded on the ground of interest the other was also excluded; the other had reference to public policy.” It has been said that “the rule which excludes husband and wife from testifying against each other rests upon sound reasons of public policy, much broader than that of the mere interest of a witness: The object of the rule is to avoid occasion for domestic dissension and discord, to preserve inviolate that mutual confidence which is essential to the mar
Changes have been made in the rule by statutes in this state. For instance, by section 1679 of the Code of 1906, in the trial of suits for divorce, both parties shall be competent witnesses against the other. Another exception is in section 1916, Code of 1906, whereby it is provided that a “husband and wife may be introduced by each other as witnesses in all cases, civil of criminal, and shall be competent witnesses in their own behalf, as against each other, in all controversies between them.” The question now presented to us is whether the testimony of Mrs. McRae was admissible under the section last mentioned ; that is, whether the present proceeding is a controversy between the husband and wife. In the case of Vance v. State, supra, we held that the abandonment and failure to support the wife or family, without just cause, is by the statute made a public wrong, remedial in its nature. It is a police regulation, for the purpose of requiring the husband and father, or head of a family, to provide, within his ability, for the support of his wife or family, and so that they will not become a public charge. By section 5058 of the Code of 1906 an offender may be required to enter into bond for his future industry and good conduct for the period of one year. In the present ease the affidavit was made by Mrs. McRae, the wife. 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.
Affirmed.
