State v. Sprouse

I regret that I find it necessary to dissent from my colleagues, but in the instant case the admission of the testimony of the wife of the defendant over objection constituted prejudicial error.

Section 2945.42, Revised Code, gives authority for one spouse to testify against the other in certain named actions, prosecutions and proceedings. The actions are specific and constitute an exception to the well-established common-law rule. The list of specified actions must not be expanded by interpretation, and the proposition that "presence or whereabouts" is not an act as contained in the section may not be used for that purpose.

The case of Rosser v. State, 10 Ohio Law Abs. 69, decided by this court, is strikingly similar to the instant case. In a summary of the facts, the court said, "She further testified as to the whereabouts of her husband when the officers made the raid at their home on June 11. She also gave further damaging testimony."

At page 69 the court says, "The class of cases in which the wife is a competent witness against her husband is limited to those specific cases mentioned in the statute." A little farther on, the court observes that the Legislature has not deemed it wise to enlarge the class of cases in which one spouse may testify against the other to include the particular type of case being reviewed. The Court of Appeals held that the testimony of the wife should have been excluded "on the ground that the wife was incompetent to testify against her husband in this case." The court said her testimony was prejudicial, adding "this was fatal error."

In view of this court's decision in Rosser, the judgment of the trial court in the instant case should be reversed and the cause remanded for a new trial.

TROOP, J., of the Tenth Appellate District, sitting by designation in the Fourth Appellate District.