43 So. 720 | Ala. | 1907
In any criminal proceeding against the husband or wife, for any bodily injury or violence inflicted, by the one upon the other, the wife or husband is. competent and compellable to testify. — Johnson v. State, 94 Ala. 54, 10 South. 427, and authorities there cited; 7 A. & E. Ency. Law (1st Ed.) 102; 30 A. & E. Ency. Law, (2nd Ed.) 955.
In all manner of offenses involving injury, the wife has always been allowed to testify directly against her husband, and where the husband is the injured party, he may testify against the wife. This comes as a matter of necessity, otherwise the crime might go unpunished. 30 A. & E. E. L. (2d Ed.) 954; 15 A. & E. E. L. (2d Ed.) 904.
The. general rule is to exclude the husband or wife in civil' or criminal cases, in which the other is a partje— 1 Gr. Ev. 334. To this rule there are, however, exceptions, found stated by Mr. G-reenleaf.in the same volume (section 343.) He then states: “So, she is a competent witness against him in an indictment for rape committed on her person; and for an assault and battery upon her; or for maliciously shooting her. * * Indeed, Mr. East considered it to be settled, that ‘in all cases of personal injuries committed by the husband or wife against each otlier, the injured party is an admissible witness against the other.’ ”
The witness, Johnson, was permitted to state, that the defendant had been his wife, but that they had been divorced. The defendant moved to exclude that part of his answer, “but we have been divorced,” on the ground,
This witness was also properly permitted to state, “that from what he saw, and in his best judgment, it was the defendant” who did the shooting. — Thornton v. State, 113 Ala. 44, 21 South. 356, 59 Am. St. Rep. 97.
He testified that he had married a second time; that he had been married not quite a week, when this occurrence of shooting through his window took place, and that defendant, a few days before, had made threats and stated to him, “that if he married that woman, it should never do him any good.”
The evidence for the state, tended to show, that the defendant shot at the witness, Johnson, her former husband, from the outsídé, through the window of his house, and immediately ran off.
The defendant, testified that she did not do the shooting, and had no cause or ground for doing so. Her counsel asked her, if she had been divorced from the witness, Johnson, and she answered, “Yes, I give him a divorce.”
The two charges requested by defendant, were properly refused.
No error appearing, the judgment and sentence below are affirmed.
Affirmed.
