McQueen v. State , 139 Miss. 457 ( 1925 )

^* Headnotes 1. Witnesses, 40 Cyc., pp. 2210, 2219; On competency of husband or wife as witness against the other in criminal case, see notes in 2 L.R.A. (N.S.) 862; 22 L.R.A. (N.S.) 240; 41 L.R.A. (N.S.) 1213; 28 R.C.L., pp. 480, 481; 2. Witnesses, 40 Cyc., p. 2221; Bigamy or polygamy by one spouse as a crime against the other spouse within statute relating to competency of husband or wife as witness against the other, see note in 4 A.L.R. 1072; 28 R.C.L. p. 485; 3 R.C.L. Supp., p. 1577, 4 R.C.L. Supp. 1825. William McQueen appeals from a conviction on a charge of bigamy. The appeal will be disposed of by the decision of one question, and that is whether or not the wife may be introduced by the state against the husband to prove the former marriage, where the husband is on trial for bigamy.

It is well settled that under the common law one spouse could not be introduced to establish a crime against the other, except where the crime was committed against the other spouse, such as assault and battery and like offenses; but we have a statute (section 1916, Code of 1906; section 1576, Hemingway's Code) which provides as follows: "Husband and wife may be introduced by each other as witnesses in all cases, civil or criminal, and shall be competent witnesses, in their own behalf, as against each other, in all controversies between them."

It is the contention of the state that it was competent to introduce Mrs. McQueen, the wife of the appellant, to establish their former marriage at New Orleans, because the charge of bigamy is a "controversy between them" and within the above statute, which allows testimony by one spouse against the other. And the attorney-general cites and relies upon the case ofMcRae v. State, 104 Miss. 861, 61 So. 977, to support his contention.

We are unable to agree with the attorney-general that the case before us comes within the exception of the statute, because we do not think it is controversy between the husband and wife within the meaning of the statute.

The crime of bigamy is wholly in the nature of a public wrong, and does not involve the former wife in the sense of a controversy between them, and may not be prosecuted by her. It might be in some cases that the wife would disbelieve the charge and would have no desire or interest in convicting her husband as having done a wrong to her. Could she then be put on against the husband? We cannot see wherein such a prosecution can be viewed as a controversy between the husband and wife as intended by the statute.

The statute, supra, making an exception, has reference to civil controversies between the husband and wife, or where one of them had offended the other within the exception named. There might be a controversy between the husband and wife within the meaning of the statute, where the prosecution of one by the other was quasi-criminal, such as the prosecution of the husband by the wife for vagrancy, as in the McRae case, supra. In that case the court said: "While she was proceeding under the regulation, as provided by the statute for relief in such cases, yet in effect there is a controversy between the husband and wife. The subject of this controversy is whether the husband shall support his family. We believe that this is such a controversy as to render competent the testimony of the wife in this case."

It seems clear to us the court was careful to say that the wife might testify against the husband on a charge for vagrancy, where she was interested in compelling the husband to support her and her children, because this prosecution is both civil and criminal in its character, and is, in that way, a controversy between the husband and wife; but not otherwise.

But the case before us is one where the conviction of the husband could not result in any material benefit to the wife, unless we say that desire for revenge makes it a controversy between the husband and wife. We do not think the statute was intended to make an exception in such a case. The conviction of the husband, it seems to us, would be wholly in satisfaction of a public wrong, and not a civil or quasi-criminal wrong toward the wife as contemplated by the statute.

In view of these conclusions, the judgment of the lower court is reversed and the case remanded, for a new trial.

Reversed and remanded.