158 Mo. 125 | Mo. | 1900
The defendant was indicted in the circuit court of the city of St. Louis, duly arraigned, tried and convicted, of an assault with intent to kill Mrs. Josephine Kretseh, on or about the 22d day,of October, 1899, in the city of St. Louis.
The indictment was, in the ordinary form, and amply sufficient. No error has been discovered in the record proper, and none pointed out by the defendant; indeed, he has no counsel in this court. The instructions were such as have been approved again and again by this court. In the motion for a new trial we note complaint is made of the refusal of certain instructions prayed by defendant. No such instructions have been incorporated in the bill of exceptions, and as a matter of course the propriety of refusing them is not before us.
The evidence fairly -establishes the following facts:
The defendant and his wife had separated, she living at No. 1921 South Broadway, St. Louis, and he at a place several blocks' distant. She was living in the same house with one-Stussel, the father of her illegitimate child; this child was five months old when she married the defendant. In November following the commission of the crime with which defendant is charged, and before the trial, she procured a divorce from the defendant, and married Stussel.
On the evening of October 26th, the prosecuting witness, Josephine Kretseh, was at the house of Mrs. Kodat, making her a visit. They were sitting outside of the house when the defendant came up and called out to his wife, “Hello, whore, I want my furniture,” to which the wife replied, “You can’t have any furniture until after the divorce case.” The child, who was then eighteen months old, was with its mother, and he kicked the child and called it a bastard ’and a son of a bitch. Upon this Mrs. Kodat called upon her husband to fight her and not the child, and she took hold of him and
This is in substance the story of the shooting and the circumstances connected with it as told by witnesses, Josephine Kretsch, Mary Stussel and John Holup, the narration of each witness of course being slightly different from the others in some of the details, but all corresponding in substance and in all the main facts.
Frank Kretsch was the only witness who testified on behalf of the defendant. He was the husband of the prosecuting witness, but was not living with her; he swore that his wife’s reputation for truth and veracity was bad. He was not present at the shooting and knew nothing about it. Defendant did not testify.
The evidence, if believed by the jury, was sufficient to convict defendant of having made an assault with a deadly weapon with intent to kill.
The remaining assignment of error presents a point never directly adjudicated by this court, so far as we can discover. It is this: Is a divorced wife a competent witness against her husband in a criminal prosecution against him for an assault upon a third party, when the alleged assault occurred during their marriage ?
The statute of Missouri has modified the common law rule to the extent that it permits them to testify against each other in divorce proceedings (R. S. 1889, sec. 8918), and by section 4218, Revised Statutes 1889, they may testify for each other in criminal prosecutions, except as to confidential communications, but not against each other. It is perfectly obvious, then, that inasmuch as defendant was charged in the indictment with an assault upon Mrs. Kretsch, Mrs. Kodat would not have been a competent witness against him if she had remained his wife at the time she was offered as a witness against him. Did her divorce from him after the assault and prior to the trial render her competent ? It may be conceded that it is a general rule that the competency of a witness is to be determined by his or her relation at the time his or her testimony is offered. Still, if her incapacity remained, notwithstanding the divorce, that rule would not aid the State.
As to strictly confidential communications between husband and wife, there can be no doubt whatever that neither death nor divorce will remove the incompetency of either to testify against the other as to such. [1 Greenl. on Evid. (16 Ed.) sec. 337.] But the point with which we have to deal is the admissibility of evidence which does not fall within the common-law definition of confidential communications between husband and wife, but does come within that of privileged statements. [1 Greenl. on Evid., sec. 254 and cases
We think Mrs. Stussel’s evidence as to her conversation with defendant and his statements made therein while yet his wife were incompetent, and the subsequent divorce did not remove their incompetency.
Was she competent to testify to a fact which directly showed the husband was guilty of the crime charged in the indictment, to-wit, that he shot at the prosecutrix? We think most clearly not. It is the policy of the law that these things which are privileged during the marriage relation shall remain forever inviolable, whether the relation has ceased by reason of death or divorce, and the divorced wife, from reasons of public policy is incompetent to testify against her
The incompetent evidence having been received over the objection of the defendant, is presumed to have been hurtful unless the contrary clearly appears. Looking through the whole record we can not say this evidence was harmless, and the judgment must for this reason be' and it is hereby reversed and the cause remanded for new trial.