274 N.W. 3 | Iowa | 1937
The indictment charges that the offense of manslaughter was committed in the city of Knoxville by the operation on the part of the defendant, while in an intoxicated condition, of his automobile, in a grossly negligent and reckless manner and at an unlawful and dangerous rate of speed; that while so driving he struck one Sparks, inflicting injuries from which Sparks died.
At the close of the state's case defendant moved for a directed verdict on grounds that there was no competent testimony *958 to sustain the allegations in the indictment, that the state failed to make a prima-facie case, and that there was no sufficient testimony to support the indictment nor sufficient to take the case to the jury. This motion was renewed at the close of all the testimony. Both motions were overruled, as was the motion for a new trial which raised the same question and others concerning instructions given and instructions refused.
Because of the possibility of a new trial, made necessary by the error to which reference is hereafter made, we refrain from a discussion of the weight and sufficiency of the testimony.
Defendant also claims, and we think rightly so, that there was prejudicial error against him in the examination of the witness whose name appears in the record as Gladys Hendrix. She was called by counsel for the state. The defendant's counsel objected in this language:
"I don't understand how you can use a man's wife in a case of this kind. I object to the use of this witness at this time."
With the permission of the court defendant's counsel developed this:
"Q. Are you married, Mrs. Chrismore? A. Yes, I am.
"Q. Who is your husband? A. Alvin Chrismore.
"Q. The defendant in this case? A. Yes, he is."
The examination then proceeded under the questioning of counsel for the state:
"Q. Miss Hendrix, when were you married? (Objection overruled.)
"Mr. Clements: Answer the question. A. 15th of December.
"Q. 15th of December of what year? A. 1934.
"Q. Of this month, present month? A. Yes, sir.
"Q. And then I take it you were not married on the 20th of October, 1934? (Objection overruled.) A. No; I wasn't.
"Mr. Clements: You wasn't. Now, the 15th; you were married last Saturday, is that right? A. Yes, I was. (Objection overruled. Exception saved.)"
[1] We are convinced that there was error here. When it became apparent that the witness was the wife of the defendant, the questioning should have proceeded no further. If there was any doubt about the truth of this testimony, investigation of the fact could have been made in the absence of the jury, thereby *959 avoiding the effect which would seem inevitably to follow this sort of examination. Its only effect, if not its purpose, could be to persuade the jury that the defendant married this woman for the sole purpose of suppressing her testimony. This may be conceded to have been the purpose of the marriage without altering our views with reference to the impropriety of admitting this sort of testimony. The statute (section 11260) expressly provides:
"Neither the husband nor the wife shall in any case be a witness against the other, * * *."
Then follows certain exceptions not applicable here.
When the fact was established that the witness was the wife of the defendant that should have been the end of it.
[2] The question as it arises here has never been directly before this court, although in State v. Smith,
While we do not attribute to the prosecution in this case the motives ascribed to the state's attorney in the case of Moore v. State of Texas, 45 Tex.Crim. R.,
"The fact that appellant had married Susie Jones the day prior to his trial was also the subject of legitimate inquiry from proper sources. But here the statute expressly prohibits the use of the wife as a witness against her husband; and this though he had married her for the express purpose of suppressing her testimony against him. Miller v. State, 37 Tex.Crim. Rep., 40 S.W. 313; United States v. White,
See, also, People v. Trine,
"The statute prohibits testimony by a wife against a husband without his consent. By calling defendant's wife, he was compelled to assert his nonconsent, which was thereby brought to the attention of the jury, who might naturally draw prejudicial inferences."
Lastly, defendant complains of instructions given and instructions refused. Some of the specifications of error are too indefinite to entitle them to consideration, but we have examined all of them carefully and have been unable to find error here; nor do we think the court erred in refusing those asked for. On the contrary, a reading of the instructions persuades us that the court gave to the defendant all and more than he was entitled to ask for. The impression left by the reading of these instructions is that the court made a very manifest effort to give the defendant a fair trial and, but for the error above pointed out, did so.
It follows that the case is reversed. — Reversed.
RICHARDS, C.J., and PARSONS, KINTZINGER, MITCHELL, STIGER, and HAMILTON, JJ., concur. *962