169 Mich. 31 | Mich. | 1912
Respondent was convicted of an assault and battery committed July 28, 1911, upon one Richard E. Oxford. It is the theory of the prosecution, supported by testimony, that Oxford ordered the wife of respondent to leave certain premises where he found her talking with his (Oxford’s) wife and to go home; that she refused to do so, and he took her by the arm in an attempt to lead or push her from the premises; that she resisted and finally sat down on a lilac bush, and as a result her sleeve, and perhaps some other of her apparel, was torn and her arm was bruised. Oxford then went into the dwelling house upon the said premises, and shortly thereafter the respondent appeared upon the scene and the premises, and Oxford, coming out upon the porch of the house, was asked by respondent what he had been doing and what he meant by having rows with women and by abusing his (respondent’s) wife and calling her names, or words to that effect. Respondent was ordered by Oxford to leave the premises. Instead of doing so, he walked to the porch upon which. Oxford was standing, Oxford put his hand on respondent’s shoulder, respondent put his foot on the lower step, caught hold of and struck Oxford, and in the mélée that ensued Oxford was struck several times by respondent.
It is the theory of the defendant, supported by testimony, that the title to the premises in question was in Mrs. Oxford; that both Mrs. Upton and her husband, the respondent, were upon the premises by the invitation and with the consent of Mrs. Oxford. It is their contention, further, that neither Mrs. Upton nor her husband, the respondent, were under any obligations to obey the requestor demand of Oxford that they leave the premises, they not being trespassers there, and that he had no right or authority to enforce his request or demand by putting either of them off of the premises. In accordance with this theory,
tc (5) It is the claim of the prosecution in this case that the defendant, George Upton, was a trespasser upon the premises where the assault is alleged to have taken place. Defendant claims that he was on the premises at the invitation of Mrs. Oxford, the wife of the complaining witness, and that Mrs. Oxford was at that time the owner of said premises, and that, at that time, and for several weeks prior thereto, the complaining witness, Mr. Oxford, had abandoned said premises as a home and was making his home elsewhere because of family differences; that the said Mrs. Oxford was in fear of her husband and called defendant to come upon said premises for protection. If you find these facts to be true, then defendant was not a trespasser and was rightfully on said premises and had a right to resist any attempt on the part of Mr. Oxford to remove him from said premises, provided that he did not use excessive force.
‘c (6) The wife’s dwelling house is that of the husband only while he makes it such in fact, and when he has abandoned it, and it is no longer his abode, it then becomes the right of his wife to invite persons to the premises, and the husband has no right to eject such persons therefrom. If, therefore, in the present case, you find that Mrs. Oxford was the owner of the premises on which the alleged*34 assault occurred, and that Mr. Oxford had abandoned said premises as a home, and that it was no longer his abode, the said Oxford had no right to eject the defendant from said premises.”
Error is assigned upon the ruling admitting testimony showing improvements made to the property by Oxford, upon the refusal to charge as requested, upon the charge as given, and upon rulings excluding certain testimony tending, it is claimed, to show abandonment of the premises.
Both Mrs. Oxford and Mrs. Upton appear to have been eyewitnesses to the affray. At the trial the respondent asked that the prosecution be required to call Mrs. Oxford as a witness for the people; she having answered that she was willing to testify. The court declining to make such an order, he offered to call her as a witness for the respondent, which the court refused to permit; her husband, Oxford, declining to consent thereto. These rulings were excepted to and are alleged to have been error. The respondent asked that the prosecuting attorney be required to call Violet Oxford, a girl 11 years old, daughter of the complaining witness and of Mrs. Oxford, as a witness for the people. This the court refused, stating that the respondent could call her as a witness if he cared to do so. This ruling is assigned as error. This statement is sufficient to show the legal questions presented.
We are called upon to construe the statute, and, of course, with some reference to the nature of, and the reason for, the privilege therein recognized. As applied to this case, we are satisfied with the reasoning employed by Mr. Justice Campbell in Parsons v. People, supra, and regard the decision reached in that case as controlling upon the question of the competency of the wife to testify to what was said and done upon the occasion in question. It is therefore unnecessary to enter upon a discussion of the subject or to review authorities. A discussion of the question of what testimony is anti-marital, with a copious citation of authority, may be found in 3 Wigmore on Evidence, § 2234 et seq. The following authorities support the conclusion we have reached.: People v. Langtree, 64 Cal. 256 (30 Pac. 813); State v. West, 118 Wis. 469 (95 N. W. 521, 99 Am. St. Rep. 1002); State v. Nelson, 39 Wash. 221 (81 Pac. 721); Campbell v. State, 133 Ala. 158 (32 South. 635); Ware v. State, 35 N. J. Law, 553; Higbee v. McMillan, 18 Kan. 133. See, also, 1 Wharton on Criminal Evidence (10th Ed.), § 396; 1 Enc. Ev. p. 633. The court was in error in not requiring the prosecuting attorney to call Mrs. Oxford as a witness and in
It must be certified to the circuit court that the exceptions, which have been referred to, are sustained, and that an order should be entered setting aside the conviction of respondent and granting a new trial.