
    Locke v. The State of Ohio.
    
      (Decided August 30, 1929.)
    
      Messrs. Blair <& Ball and Mr. George W. Sheppard, for plaintiff in error.
    
      Mr. Dustin W. Gustin, prosecuting attorney, for defendant in error.
   Madok, J.

The plaintiff in error, Joseph B. Locke, was convicted by a jury in the court of common pleas of Scioto county of murder in the first degree without a recommendation of mercy.

The record discloses that on the morning of February 6, 1929, Locke was at the home of one Mary Galloway, his mother-in-law, with whom he and his wife, Lucy Locke, had been living. He left the house for a few moments, and returning entered a front room in which his wife and Mary Galloway were standing. Immediately thereafter, in the presence of his wife, he shot Mary Galloway twice with a .32 Savage automatic pistol, following which he shot his wife twice with the same weapon. He then left in his automobile, and was subsequently arrested in Columbus, Ohio. His mother-in-law, Mary Galloway, died from the wounds she so received on February 8, 1929. His wife survived the assault made upon her, and was a witness for the state in the trial now before us for review.

The record shows that Locke and his wife had been having some marital differences, and that they were at the time just entering upon a separation. The record not only fails to show any differences theretofore existing between Locke and his mother-in-law, but it affirmatively shows that they had been upon the most agreeable relations.

The only two questions open for review are whether the verdict might be reversed as being contrary to the weight of the evidence, and whether fatal error intervened by virtue of the state using the wife of the accused as a witness.

We would not reverse the case as being opposed to the weight of the testimony. There is no question that Locke shot Mrs. Galloway, and that she died as the result thereof. The jury tried out the question of the defendant’s mental competency, and we would not disturb its finding in that behalf. There was no apparent motive for the killing, and the testimony tending to show premeditation is very meager, but, as there was some competent testimony from which the jury might have found premeditation and deliberation, the conclusion of the jury will not be disturbed as against the weight of the evidence.

As before indicated, the state called the defendant’s wife to the stand and examined her fully. At the time of the shooting there was no one present except Locke, Mrs. Galloway, and Mrs. Locke. Mrs. Locke testified to the shooting by her husband, and, except as to a claimed admission, to whatever facts there were to establish premeditation on the part of the defendant. Her importance as a witness, therefore, cannot be questioned.

There were at common law two important rules relating to the testimony of husband and wife. 5 Jones on Evidence (2d Ed.), Section 2128. The first of those rules was that, as no one could testify in a case to which he was a party, and as husband and wife were one in law, so the husband or wife was incompetent to testify in a case in which the other spouse was a party. This rule made the wife absolutely incompetent to testify for or against her husband, and the rule was so absolute that in most jurisdictions it was held that the incompetency could not be waived. The second rule was of a different character. It did not rest upon any fiction of the unity of husband and wife, but had as its basis a sound public policy. It was that neither spouse should testify in regard to any confidential communications between husband and wife. This rule was designed to encourage marital confidences, and, though the marriage relation was thereafter dissolved, a confidence imparted during marriage could not be violated after the marital relation terminated. The first rule made the husband or wife wholly incompetent to testify in certain cases. The second rule made it incompetent for husband or wife to testify to certain particular things in such cases as they were competent witnesses. The first rule ceased to operate as soon as the marriage ceased to exist. The second rule continued to operate regardless of the continuance of the marriage. The first rule governed the power to testify and made the witness incompetent. The second rule conferred a privilege and made the evidence incompetent. Neither of these common-law rules prevails in this state in its entirety, but the rules do prevail except so far as they have been supplanted by statute. So far as criminal law is concerned, the Legislature has undertaken to change both rules by the provisions of Section 13659, General Code. By that section it is provided :

“Husband and wife shall be competent witnesses to testify in behalf of each other in all criminal prosecutions, and to testify against each other in all actions, prosecutions, and proceedings for failure to provide for, neglect of, or cruelty to, their child or children under sixteen years of age. ’ ’

This is as far as the Legislature had gone in making the wife a competent witness against her husband at the time of his trial, and it is consequently apparent that the first of the common-law rules above mentioned had not been sufficiently modified to make a wife a competent witness for the state in the prosecution of her husband for any offense except those mentioned. In the same section, the Legislature, coming to modify the common-law rule relating to confidential communications, referred to above as the second rule, provided that:

“Husband or wife shall not testify concerning a communication made by one to the other, or act done by either in the presence of each other during coverture, unless the communication was made or act done in the known presence or hearing of a third person competent to be a witness, or in case of personal injury by either the husband or wife to the other, or in case of the failure to provide for, or the neglect or cruelty of either to, their children under sixteen years of age.”

In the trial of this case these two common-law rules and their statutory modification were confused. Counsel for the accused urged that the act of Locke in shooting could not be testified to by Mrs. Locke, because no third person was present. This objection was untenable. Mrs. Galloway was present, and her subsequent death did not change the fact that her presence robbed the act of any confidential character. The record is obscure, but there appears to be but one incident or conversation, to which Mrs. Locke testified over objection, that was not in the known presence of a third person, and that was a conversation in the kitchen in the absence of Mrs. Galloway. The objection to this conversation would have been well taken if Mrs. Locke had been a competent witness. Mrs. Locke was, however, incompetent, and her employment as a witness was fatal unless waived by the accused. While at common law an absolutely incompetent person could not by agreement or waiver be converted into a competent one, that rule no longer obtains. The spouse is no longer absolutely incompetent. Husband or wife may testify for each other, and this partial competency makes it possible for the accused to waive the competency of such witness when called by the state.

The most serious question in this case is whether Locke did waive the use of his wife as a witness against him. Manifestly the proper time to object to the use of an incompetent witness is when the witness is called to the stand, or as soon thereafter as the disqualification appears. In this case Mrs. Locke was sworn without objection, and her examination proceeded to some length. She testified to her marriage to the accused and to many facts and incidents prior to and leading up to the shooting, all without objection. When, however, the state first connected the accused with the shooting, an objection was interposed on the ground that she was incompetent. While this objection came surprisingly late, and while, as pointed out, the subsequent objections were predicated, not upon her incompetency, as they should have been, but upon the ground that they violated the second rule above mentioned, namely, that they were privileged because not committed in the known presence of another, we conclude, nevertheless, that the one objection was made early enough and clearly enough to protect and save the rights of the accused in the premises, and that it was error to proceed with the examination of Mrs. Locke after the first challenge of her competency was made. State v. Orth, 79 Ohio St., 130, 86 N. E., 476, 22 L. R. A. (N. S.), 240.

For error in the admission of evidence, the judgment is reversed and the case remanded for new trial.

Judgment reversed.

Middleton, P. J., and Allread, J., concur.

Allread, J., of the Second Appellate District, sitting in place of Blosser, J.  