104 Mo. App. 255 | Mo. Ct. App. | 1904
Based on the affidavit of the wife of the defendant, an information, charging him with wife abandonment, was filed in the circuit court and chiefly on her testimony he was convicted.
The contention of the appellant in the trial court was and is here, that the wife is not a competent witness against her husband, and for this reason is not such a person as is authorized to make an affidavit as a basis for filing an information as provided by section .2477, R. S. 1899. Neither the husband nor wife is, at common law, a competent witness for or against the other in a civil or criminal cause in which the other is a party. 1 Greenleaf, Evidence, sec. 334 (Lewis Ed.); Wharton, Crim. Evid. 390. There are exceptions to this rule allowed from necessity of the case. The principal one is that in all cases of personal injuries or violence committed by the husband or wife against each other, the injured party is a competent witness against the other. 1 Greenleaf, Evidence, sec. 343; Wharton, Crim. Evid., sec. 393; State v. Boyd, 27 Am. Dec. 376, and extended note where the authorities are collated; State v. Willis, 119 Mo. 485; Bassett v. United States, 137 U. S. 496; Cotton v. State, 62 Ala. 12; State v. Burlingame, 146 Mo. 207; State v. Kodat, 158 Mo. 125. Another exception to the rule is to permit the wife to testify against the husband whenever she is the particular individual directly injured by the crime committed by her husband, and the facts are peculiarly within her knowledge and impossible or difficult of proof by any witness other than his wife.
In State v. Newberry, 43 Mo. 429, this exception to the rule was recognized and the wife held to be a competent witness against her husband, and competent to make an affidavit to the information charging him with the offense of wife abandonment, the identical crime charged here. The exception to the rule was applied in a civil case by the Kansas City Court of Appeals in the