Grier v. State , 158 Ga. 321 ( 1924 )

Russell, C. J.

(After stating the foregoing facts.)

There have been numerous decisions of this court construing § 954 of the Penal Code (1910), which provides that all indictments shall be deemed sufficiently technical if in the language of the code and where the offense is so plainly charged that the jury may easily understand the nature of the offense charged, to the effect that each defendant is entitled to be sufficiently informed of the nature of the charge against him as to be enabled to prepare his defense (e. g. Johnson v. State, 90 Ga. 441, 16 S. E. 92); and inasmuch as the indictment now before us merely sets forth more fully than ordinarily the manner in which the alleged homicide was committed, we do not think the plaintiff in error has any cause for complaint. It is a principle so unquestioned as not to require the citation of authority that if one assault another with malice aforethought, intending to kill him, and a third person meets his death by the stroke or blow or shot intended for him who was the primary object of the assault, the offense is murder, although the assailant did not intend to kill him who actually lost his life. The indictment in this case does no more than set forth a case of this kind.

Passing from the general grounds of the motion for a new trial for reasons which are apparent from the opinion, we come to consider the amendment to the motion. In the first ground error is assigned upon the overruling of the demurrer which has already been considered upon the assignment of error upon the exceptions pendente lite. But for these exceptions the overruling of the demurrer could not be considered here. Rulings upon pleadings do not afford a pr'oper ground for a motion for a new trial, Judge Bleckley having facetiously remarked that this principle is so hoary with age that he bowed to it reverently.

The second, third, and fourth grounds of the amended motion each presents in a different form the 'question whether Georgia Grier was competent to testify for or against the defendant, her husband, he not being on trial for an offense committed or attempted to have been committed on her person. The court permitted Georgia Grier, over the objection of the defendant, to testify that her husband shot at her with an automatic pistol twice. “This is the pistol. I had done nothing to cause him to shoot at me. He missed me when he shot. I was sitting in the corner by the dresser, when he said to stand out, that he was going to kill me. I said, ‘Don’t kill me;’ then he pushed me and said to get back, he was going to shoot me. He didn’t say why he was going to shoot me. He pushed me back and shot twice. My baby, K. C. Grier, was in my arias. This was in Monroe County.” In the ruling upon the demurrer the court had necessarily adjudged that the defendant was on trial for the murder of K. C. Grier, and for that reason we think that Georgia Grier, the wife of the defendant, was wholly incompetent to testify in the case to any fact or circumstance either for or against her husband. As we under-

stand the provision of the code npon this subject, a wife is not permitted to testify even in a qualified or restricted sense to a part of what she may know, and remain silent as to the remainder of the truth which may rest in her knowledge. If her husband is on trial, a wife cannot testify at all. She cannot testify for her spouse, nor can she testify against him. “Husband and wife shall not be competent or compellable to give evidence in any criminal proceeding for or against each other, except that the wife shall be competent, but not compellable, to testify against her husband upon his trial for any criminal offense committed, or attempted to have been committed, upon her person.” P. C. 1910, § 1037 (4). Different States in the Hnion have various rules as to the competency of husband and wife to testify for or against each other, but it will be observed that under the code section quoted a husband is never competent as a witness against his wife upon her trial for crime. Ector v. State, 10 Ga. App. 777 (74 S. E. 295). A wife is competent to testify against her husband only upon his trial for “any criminal offense committed or attempted to have been committed upon her person,” as well as “a competent witness to'testify for or against her husband in case of abandonment of his child.” The wife cannot testify for her husband upon his trial for any criminal charge, except that of abandonment. She cannot testify against him, unless the offense was committed upon her own person. The history of Penal Code section 1037 (4) shows the gradual evolution of the law in this State to its present status. An act of the General Assembly approved June 19, 1860 (Code of 1863, § 3782), declared that “Husband and wife, lawfully married, cannot be witnesses for or against each other, nor can the wife be a witness for a third person, where her testimony may indirectly affect her husband. The objection exists after the dissolution of the marriage, by death or otherwise, as to all knowledge acquired by either party by reason of the marriage relation. An exception to this general rule exists in all criminal or quasi-criminal proceedings against either party for offenses upon the person of the other.” It will be seen that the exception to the general rule that neither husband nor wife could be .witnesses for or against the other permitted both husband and wife to testify against the other in criminal proceedings for offenses upon the person of the other. By the act approved December 15, 1866, known as “the evidence act” of that year (Acts 1866, p. 138), the privilege accorded the husband of testifying against his wife for an offense committed upon his person was stricken out, and in § 3798 of the Code of 1867 and in the fourth subdivision of § 3854 of the Code of 1873 it was declared that “No husband shall be competent or compellable to give evidence for or against his wife in any criminal proceeding, nor shall any wife, in any criminal proceeding, be competent or compellable to give evidence for or against her husband.” Thus stood the law until 1880, when the legislature passed an act (Acts 1880, p. 131) providing that the wife should be competent but not compellable to testify against her husband upon his trial for “any criminal offense committed or attempted to have been committed upon her person,” and in the Code of 1883 this exception in behalf of the wife is inserted as the concluding portion of the fourth subdivision of § 3854.

From the history of the legislation upon this particular subject it would seem to be the well-established policy of this State that the wife shall not be permitted to testify against the husband in any trial in which the crime charged was not one committed upon her person. Consequently, while the wife in the present case would be a competent witness to testify to the offense of assault with intent to murder committed upon her person, if such be the truth of the case, she is not competent to testify to the offense of murder committed upon another, even though in the commission of that offense another and a different offense was committed upon her person. It must be remembered that the wife is not permitted to testify at all except as a matter of exception to the general rule; and the provision for her testifying, being an exception, cannot be liberally extended and must be strictly construed. In Bassett v. United States, 137 U. S. 496 (11 Sup. Ct. 165, 34 L. ed. 763), the Supreme Court had before it the question whether a wife was a competent witness against her husband on trial under .an indictment charging polygamy. Naturally, as stated by the court, the polygamous relation of the husband is most obnoxious to a wife and humiliating and injurious to her peace and happiness; but the judgment of the Supreme Court of Utah was reversed because the wife was held not competent, because, under a statute similar to our own, the crime was not one committed against the person of the wife. In delivering the opinion of the court, Mr. Justice Brewer said: “It was a well-known rule of the common law that neither husband nor wife was a competent witness in a criminal action against the other, except in cases of personal violence, the one upon the other, in which the necessities of justice compelled a relaxation of the rule. . . This precise question has never been before this court, but the common-law rule has been noticed and commended, in Stein v. Bowman, 13 Pet. 209, 222, in which Mr. Justice McLean used this language: ‘It is, however, admitted in all the cases that the wife is not competent, except in cases of violence upon her person, directly to criminate her husband, or to disclose that which she has learned from him in their confidential intercourse/ ‘This rule is founded upon the deepest and soundest principles of our nature, principles which have grown out of those domestic relations that constitute the basis of civil society, and which are essential to the enjoyment of that confidence which should subsist between those who are connected by the nearest and dearest relations of life. To break down and impair the great principles which protect the sanctities of husband and wife, would be to destroy the best solace of human existence/ We do not doubt the power of the legislature to change this ancient and well-supported rule; but an intention to make such a change should not lightly be imputed. It cannot be assumed that it is indifferent to sacred things, or that it means to lower the holy relations of husband and wife to the material plane of simple contract. So, before any departure from the rule affirmed through the ages of the common law, — a rule having its solid foundation in the best interests of society, — can be adjudged, the language declaring the legislative will should be so clear .as to prevent doubt as to its intent and limit. . . We conclude, therefore, that the section quoted from the Code of Civil Procedure, if applicable to a criminal case, should not be adjudged as working a departure from the old and established rule, unless its language imperatively demands such construction. Does it?”

Does the language of our statute demand a construction that the injury to the feelings of a mother in the murder of her child will authorize a stretch of the provisions of § 1037 (4) of the Penal Code, permitting the wife to testify as to crimes committed upon her person, so as to include the killing of her child, a baby in her arms? We think not. In the Bassett cáse, supra, Mr. Justice Brewer asks the question, “Is polygamy such a crime against the wife? That it is no wrong upon her person is conceded; and the common-law exception to the silence upon the lips of the husband and wife was only broken, as we have noticed, in cases of assault of one upon the other. That it is humiliation and outrage to her is evident. If that is the test, what limit is imposed ? Is the wife not humiliated, is not her respect and love for her husband outraged and betrayed, when he forgets his integrity as a man and violates any human or divine enactment? Is she less sensitive, is she less humiliated, when he commits murder, or robbery, or forgery, than when he commits polygamy or adultery? A true wife feels keenly any wrong of her husband, and her loyalty and reverence are wounded and humiliated by such conduct. But the question presented by this statute is not how much she • feels or suffers, but whether the crime is one against her.” In the ease at bar, to ask the question whether the killing of her child is a crime upon the person of the wife is to answer it in the negative.

The precise point here involved does not appear to have been heretofore presented to this court, but such general principles as those adverted to in the opinion of Mr. Justice McLean, supra, and that exceptions to general rules must be confined within their express limits, have always been recognized here; and therefore we are convinced that the decision of the Supreme Court of West Virginia upon a case almost identical as to its facts with that now before us correctly states the rule. In State v. Woodrow, 58 W. Va. 527 (52 S. E. 545, 2 L. R. A. (N. S.) 862, 112 Am. St. R. 1001, 6 Ann. Cas. 180), the court held: “A wife is not a competent witness against her husband in a prosecution against him for the murder of his infant child of the age of fourteen months, though the same pistol ball killed the child and wounded the wife while the child was in her arms.” In the opinion delivered by Brannon, P., many authorities are cited showing that the bulk of American decisions is to the effect that to place the wife within the exception which will permit her to testify against hex husband the case must be one of personal violence to, the spouse. “The act must touch her person, or her personal individual right, as a person distinct and individualized from the balance of the community, to come under the exception spoken of. An enormous wrong this murder was to the mother in a moral point of view, in an emotional point of view, in a sentimental point of view, in a pathetic point of view, under emotions of the heart which move human beings, owing to the relation of mother and child. We are apt to consider this terrible crime as a greater one against the mother than to any other living human being. Still, in a physical point of view, the homicide did not touch the person of the wife, but was only a crime against her as one member of the community, —I mean in the eye of the law. Remember that Woodrow was tried for killing the child, not for shooting his wife. On a trial for shooting his wife she could, under the exception stated, give evidence against her husband, and could prove, if material, not only the shooting of herself, but also the shooting of the child, as a part of the res gestae; but on his trial for killing the child the fact that the one ball did violence to both mother and child does not alter the case. The homicide of the child is one distinct crime; the shooting of the mother another distinct crime. The close connection of the two in time and circumstances does not blend the results of ¡the ball, and make the killing of the child a personal Or corporeal violence to the mother. To come under the exception, the crime must be against the mother in a legal point of view. The rule of evidence as to res gestae will not admit the wife as a witness. Under that rule, the question is, not the competency of the witness proving the things done or said, but whether the things themselves are proper to go before the jury, even though proved by a competent witness; whereas here it is a question whether the witness is a proper one to prove the things done or said, admitting those things to be proper evidence, if deppsed to by a competent witness. Necesshy, the want of another witness, is pleaded for the admission of the wife’s evidence in this case.” “If a husband should kill a man in the field or highway, none but the wife of the murderer being present, would she be a competent witness against her husband? Surely not. Yet the cry of justice would be as loud in that case as in the present case. The necessity would be just as great.”

■ We think the error in the admission of this testimony requires the grant of a new trial.

As qualified by the note of the presiding judge there is no merit in the assignment of error in the fifth, sixth, and seventh grounds of tlie amendment to the motion for a new trial, which complain of the admission of testimony as to the flight or attempted flight of the defendant.

The defendant objected to the admission in evidence of the petition for divorce by his wife against him, on the ground that “it does not illustrate the issues in this case, and is incompetent to impeach the statements of the defendant.” The petition for divorce is not set out in extenso, nor is the substance thereof stated in the ground of the motion which complains of its admission. A ground of a motion for a new trial complaining of the admission of documentary evidence cannot be considered unless the same is set forth either literally or in substance in the motion itself or is attached thereto as an exhibit. Norred v. State, 127 Ga. 347 (56 S. E. 464); Walton v. Busby, 147 Ga. 487 (94 S. E. 563).

Since we hold that the wife is not competent to testify against her husband where the essence of the crime with which he stands charged is an injury to the person of some one other than the wife, the court erred in charging as complained in the tenth ground of the amended motion. In this instruction, as .it will be found in the statement of facts, the court in effect instructed the jury that the testimony elicited from Georgia Grier, the wjfe, was competent, merely calling their attention to the fact that the consideration of her testimony was “limited to the determination of the issue made by the indictment, wherein it charges that the homicide of K. C. Grier was the result of the alleged unlawful intention to kill'and from an assault made by the defendant upon his wife (if you find that any such assault was made).” We fail to understand the limitation imposed by the court, and doubt if the jury clearly understood it. How the assault made by the defendant upon his wife was to indicate an unlawful intention to kill K. C. Grier; but however that may be, the defendant was not on trial for any offense committed or attempted to have been committed upon her person, and the Avife was in no sense a competent witness to testify against him; and therefore the instruction incorrectly stated the law applicable to the case.

Judgment reversed.

All the Justices conmr, except