
    The State of Ohio, Appellee, v. Antill, Appellant.
    (No. 37843
    Decided April 1, 1964.)
    
      
      Mr. T. J. Kremer, Jr., prosecuting attorney, for appellee.
    
      Mr. George F. Burkhart and Mr. F. Vincent Ballard, for appellant.
   Matthias, J.

This case presents two questions for determination by the court:

1. Is a wife a competent witness and can she be compelled to testify against her husband under an indictment charging that he “did unlawfully assault * * # [his wife] with a dangerous weapon or instrument likely to produce great bodily harm,” where a personal injury to the wife resulted therefrom?

2. Is the physician who treats a person who has suffered a wound inflicted by a deadly weapon permitted to testify as to the condition of the victim, in a criminal prosecution therefor?

At common law, there are certain exceptions to the general rule excluding a husband and wife from testifying for or against each other. In actions involving a personal injury of one committed by the other, the injured spouse is permitted to testify. This exception was said to be based on “necessity.” As a general rule, no outsider is present when a person injures his spouse. If the injured person were not permitted to testify, the law would be powerless to redress the wrong. The guilty party would be able to injure his spouse in the privacy of their home with complete immunity. An exception was therefore necessary in order to prevent injustice. 8 Wigmore, Evidence (1961), 242, Section 2239.

This court in Whipp v. State (1877), 34 Ohio St., 87, permitted a husband to testify against his wife. The wife had been indicted for assault with intent to kill her husband. The court recognized the general exclusionary rule but held that the husband was a competent witness since his wife had inflicted a personal injury on him.

The Whipp case was cited and approved in State v. Orth (1908), 79 Ohio St., 130.

The exception in case of personal injury by the husband or wife to the other was codified in Ohio. 86 Ohio Laws, 161 (1889). Section 2945.42, Eevised Code, authorizes a husband and wife to testify against each other in a prosecution for personal injury of either by the other. In the instant case, the husband was indicted for assault with a dangerous weapon. He allegedly struck his wife and stabbed her with a butcher knife. To hold that the wife is not a competent witness under such circumstances places a strained interpretation on the language of Section 2945.42, Eevised Code, and ignores its common-law background.

The injured spouse is permitted to testify in order that he or she will not be exposed to personal injury without having a remedy. However, where, as here, the facts constitute a crime, his or her right to testify also ensures that the public will not suffer an offense without a remedy. The wrongdoer not only injures his spouse but he also injures the public, and it is for his offense against the public that he is subject to criminal prosecution. When the injured spouse is a witness for the state his competency cannot be affected by his desires or fears. He must testify to protect the public. Turner v. State (1882), 60 Miss., 351, 45 Am. Rep., 412.

The demand for the testimony of the injured spouse comes not from him alone but from the .community as a whole. Every member of the community has a duty to give whatever testimony he is capable of giving. The truth must be known, as far as possible, to enable the law to provide justice in each case. See 8 Wigmore, Evidence (1961), 70, Section 2192; and In re Story (1953), 159 Ohio St., 144, 148, 149.

In some instances, the law feels that another interest is sufficiently important to warrant an exception to this duty to give testimony. Thus, to promote marital peace there is a privilege not to disclose in court confidential communications between husband and wife. However, the basis for this privilege is lacking where a person is tried for assaulting his spouse.

“* * * it is an overgenerous assumption that the wife who has been beaten, poisoned or deserted is still on such terms of delicate good feeling with her spouse that her testimony must not be enforced lest the iridescent halo of peace be dispelled by the breath of disparaging testimony. And if there were, conceivably, any such peace, would it be a peace such as the law could desire to protect? Could it be any other peace than that which the tyrant secures for himself by oppression?” 8 Wigmore, Evidence (1961), 242, 243, Section 2239.

Under the circumstances involved in the instant case, the wife is competent and like any other witness can be compelled to testify. If she refuses she can be found in contempt and imprisoned until she agrees to testify. See Sections 2705.02 (C) and 2705.06, Revised Code.

No violation of the physician-patient privilege (Section 2317.02, Revised Code) occurred in allowing the physician who treated the victim to testify. The purpose of this privilege is to encourage patients to make a full disclosure of their symptoms and condition to their physicians without fear that such matters will later become public. Against the interest of the patient in having his condition remain confidential, must be balanced the interest of the public in detecting crimes in order to protect society.

To accomplish this end, the General Assembly, in 1961, enacted Section 2917.44, Revised Code (129 Ohio Laws, 1034), which reads, in part, as follows:

“* * * any physician who shall treat, or be called upon to treat, any such wound [gunshot wound or wound inflicted by a deadly weapon] shall make a report setting forth a description of the wounded person, his name and address, if known, and a description of the nature and location of such wound.

“No person who makes a report in good faith with a view of complying with the requirements of this section shall, by reason thereof, have violated any confidential relationship * # * ??

It is, therefore, proper for the physician who treats a person wounded by a deadly weapon to testify in court as to the nature of the wound. The publicity against which the privilege is supposed to protect has already taken place. The details of the wound must have been reported by the physician to a law-enforcement officer. The only purpose that sustaining the privilege can now serve is to obstruct the course of justice.

The function of this court in reviewing a conviction is limited to the question of whether there was sufficient evidence to warrant the submission of the case to the jury and to support the verdict returned. State v. Sheppard (1956), 165 Ohio St., 293, paragraph five of the syllabus.

If there is evidence from which reasonable minds can reach different conclusions on the issue of whether the defendant is guilty beyond a reasonable doubt, the case should be submitted to the jury for its determination.

The record discloses the following testimony by a deputy sheriff:

“Q. Now, I will ask you again, Herman, isn’t it a fact that, under oath a few weeks ago, you said that Esther said to you that Pie had stabbed her?

C l # # #

“A. * * * He was crying about it; said his wife accused him of cutting her on purpose. I will say that.

I 6 * # *

“Q. I will ask you whether or not this question wasn’t asked to you, Herman: ‘Was he definitely under the influence?’ Your answer: ‘Yes, he had too many. I’ve been on there for five years. This is the worst I’ve ever seen him.’ I will ask you whether or not you didn’t make that statement? A. Well, I’ll admit he was drinking some that night, but I never saw him drink any — I don’t believe I saw him drink any before that. He was a little that night.

“Q. I will ask you whether or not you didn’t say, under oath —didn’t say that under oath? A. Yes, I think I did.” (Emphasis added.)

Another deputy sheriff testified as follows:

“Q. I might refresh your recollection. I will ask you this: (Reading) ‘I said, Esther, what happened to you? She said, Oh, he stabbed me.’ [Admissible in the discretion of the trial court, under the exception to the hearsay rule for spontaneous exclamations, see Potter v. Baker, 162 Ohio St., 488.] Isn’t that what you said, Dale? If 1 said that it must be the truth.” (Emphasis added.)

Dr. Christman, who was called to treat Mrs. Antill’s wounds, testified as follows:

“Q. Did he [the defendant] make any statements to you while Esther was there or you and he when he came?

Í t # # *

“A. He stated he would not use a squad car [to send Mrs. Antill to a hospital] and he said he would see her fall off the chair and bleed to death without calling an ambulance.

<<# # *

“Q. I will ask you also, Doctor, whether or not it could have happened — that wound you examined — whether that could have happened by a person just walking, say, into a sharp instrument?

6 i • * #

“A. I would expect a person a recoil as quickly as possible. ’’ (Emphasis added.)

Mrs. Antill testified as follows:

“Q. How did you receive that wound? A. Well, I was very much irritated at him and I pushed the chair toward him and he whirled around and he had a dish and Tmife in his hand, so l came against it.

“Q. Prior to the time that occurred, did anything else happen there? A. Nothing only we had been arguing.

“Q. Was any part of your body touched before that? A. Yes. We had got into a scrap before that.

“Q. And what part of your body was bruised prior to the time of the knife wound? A. My left breast.

“Q. What caused that? A. He grabbed me when I started at him.

t i # # #

“Q. What type of instrument was it that you received a wound from? A. It was a butcher knife.

< 4 # * #

“Q. Now, I ask you this, Esther, whether this question wasn’t asked you: ‘He just picked up the butcher knife and stabbed you with it?’ And your answer was: ‘Yes.’ A. Yes, he picked up the butcher knife. I had the mark.” (Emphasis added.)

The jury is the sole judge of the weight of the evidence and the credibility of witnesses. It may believe or disbelieve any witness or accept part of what a witness says and reject the rest. In reaching its verdict, the jury should consider the demeanor of the witness and the manner in which he testifies, his connection or relationship with the prosecution or the defendant, and his interest, if any, in the outcome. The jury may also consider the failure of the defendant to take the stand in his own behalf.

We, therefore, find that there was sufficient evidence in this cause to warrant its submission to the jury and to support the verdict rendered.

Judgment affirmed.

Tart, C. J., Zimmerman and O’Neill, JJ., concur.

Gibson, J., concurs in paragraphs one, two, four and five of the syllabus.

Brown and Herbert, JJ., dissent.

Brown, J., of the Fourth Appellate District, sitting by-designation in the place and stead of Griffith, J.

Gibson, J.,

concurring in paragraphs one, two, four and five of the syllabus. Esther Antill, wife of the accused, and the victim, in the instant case, did not prefer charges against her husband. She refused to be sworn at the trial of her husband and was incarcerated in the county jail until she was willing to testify. If the testimony of Mrs. Antill was inadmissible, there was insufficient evidence to convict the accused. Thus, the crucial issue in this case is whether a wife can be compelled contrary to her wishes to testify against her husband in a criminal proceeding for an alleged assault upon her.

Generally at common law a wife and husband are incompetent as witnesses for or against each other in either civil or criminal proceedings. 97 Corpus Juris Secundum, 469, Witnesses, Section 75. In Ohio, the common-law rule respecting the competency of spouses as witnesses in criminal proceedings was changed by Section 2945.42, Revised Code, which provides:

“No person is disqualified as a witness in a criminal prosecution by reason of' his interest in the event thereof as a party or otherwise, or by reason of his conviction of crime. Husband and wife are competent witnesses [1] to testify in behalf of each other in all criminal prosecutions, and [2] to testify against each other in ■all actions, prosecutions, and proceedings [a] for personal injury of either by the other, [b] bigamy, or [c] failure to provide for, neglect of, or cruelty to their children under sixteen years of age. [3] A wife may testify against her husband in a prosecution under section 3113.01 or 3113.03 of the Revised Code for neglect or abandonment of such wife. Such interest, conviction, or relationship may be shown for the purpose of affecting the credibility of such witness. Husband or wife .shall not testify concerning a [1] communication made by one to the other or [2] act done by either in the presence of the other, during coverture, unless [a] the communication was made or act done in the known presence or hearing of a third person competent to be a witness, or [b] in case of personal injury by either the husband or wife to the other, or [c] bigamy, or [d] failure to provide for, or neglect or cruelty of either to their children under sixteen years of age, or [e] neglect or abandonment of such wife under such sections. The presence or whereabouts of the husband or wife is not an act under this section. The rule is the same if the marital relation has ceased to exist.” (Emphasis added.)

The purpose of the general rule of exclusion, both at common law and under the statute, is to secure domestic tranquility. Such is to be attained by encouraging, rather than discouraging, confidences between spouses, so that each may freely make disclosures to the other and may advise and consult with one another as to any matter or act, secret or otherwise, that may affect the family unit. 56 Ohio Jurisprudence (2d), 641, Witnesses, Section 222.

The statute, which is in derogation of the common law, is to be strictly construed. The statute does not make the wife a competent witness against the husband generally in all criminal cases. State v. Orth (1908), 79 Ohio St., 130. The General Assembly, having provided that the wife is competent as a witness in specifically enumerated cases, clearly did not intend to remove the disqualification in cases not mentioned. State v. Goodin (1938), 60 Ohio App., 362; Rosser v. State (1931), 10 Ohio Law Abs., 69.

Clearly, if the wife wishes to testify against her husband in one of the cases excepted from the general exclusion, e. g., failure to provide for such wife, or bigamy, or in case of personal injury by either husband or wife to the other, she may do so because by statute she is legally qualified or competent. But to say that by the statute a wife is legally qualified or competent to testify against her husband does not mean, unless this court says it does, that she may be compelled to testify against him. In my opinion, the proposition that a husband or wife, being legally competent or qualified as witnesses, may, if they so elect, testify against one another in the excepted cases enumerated in the statute, and the proposition that they must testify against one another particularly in an assault case, even if it be considered a case of personal injury by either to the other, which I do not believe it to be, are antipodal.

It has been suggested on the basis of In re Story (1953), 159 Ohio St., 144, and 58 American Jurisprudence, 134, Witnesses, Section 191, that it is not optional with either husband or wife to testify or not,' but, if presented as a witness, he or she may be compelled to testify against the other. However, In re Story involved the problem of compelling a police officer to testify about records in his control rather than that of compelling a spouse to testify against the other.

The assertion contained in 58 American Jurisprudence, ibid., rests upon Turner v. State (1882), 60 Miss., 351, 45 Am. Rep., 412, and Bramlette v. State (1886), 21 Tex. App., 611, 2 S. W., 765. In fact, shortly after the decisions in the foregoing cases, Alabama, in Johnson v. State (1891), 94 Ala., 53, 10 So., 427, reached the same conclusion. This rule was altered by statute. Section 311, Title 15, Alabama Code. Only two additional cases have been found sanctioning compulsory testimony of one spouse against the other. Wyatt v. United States (1960), 362 U. S., 525, approved of compelling a wife to testify against her husband in a Mann Act prosecution, where the wife was the prostitute. The California Court of Appeals in Young v. Superior Court of Alameda County (1961), 190 Cal. App. (2d), 759, 12 Cal. Rep., 331, sanctioned the forcing of a husband to testify against his wife.

To the best of my knowledge, no other state has ruled that a wife may be compelled, contrary to her wishes, to testify against her husband. But in addition to the Alabama statute, cited above, at least two other states have enacted statutes preventing the state from compelling one spouse to testify as a witness against the other. Section 38-1604, Georgia Code; Section 546.260, Missouri Revised Code 1949. In addition, two justices joined in the dissent of Mr. Chief Justice Warren in Wyatt v. United States, supra, finding it difficult to understand why the government must have the power to protect the wife against herself by forcing her to testify against her husband. In my opinion, this course of decision by the overwhelming majority of jurisdictions represents sound public policy.

If this wife refuses to testify against her husband and continues to live with him, at least the family unit, father, mother, and six children, remains intact, but, if she is compelled to testify, the husband may be taken to prison during which time the family unit will he disrupted. There is greater likelihood that the unit having been disrupted will not go back together. Surely any interest the state may have in punishing a husband, who may be guilty of assault upon his wife, is inferior to the interest the state has in maintaining domestic tranquility, at least where the wife is unwilling to voluntarily testify against her husband.

Herbert, J.,

dissenting. The problem presented here may be stated in this language:

Did the trial court commit prejudicial error when it required Mrs. Antill to testify against her husband, notwithstanding the provisions of Section 2945.42, Revised Code, that “husband and wife are competent witnesses to testify * * * against each other in all actions, prosecutions, and proceedings for personal injury of either by the other”?

The indictment does not charge that appellant inflicted any personal injury or bodily harm upon his wife. It charges him with an “assault” upon his wife. An assault does not include physical contact. It is more in the nature of a threat, express or implied, to do bodily harm to another.

The Grand Jury had before it the evidence and testimony of all the witnesses. The evidence presented to a Grand Jury is secret. This court does not have the evidence before it that was presented to the Grand Jury. Neither in fact nor in law can this court substitute its judgment for that of the Grand Jury in the matter of inquiry of offenses committed within Monroe County.

Had the Grand Jury decided that the evidence warranted a charge that the appellant did personal injury to his wife, it could have done so. The Revised Code defines numerous offenses wherein physical injury is inflicted by one person on another, such as assault and battery (Section 2901.25); cutting or stabbing another (Section 2901.23); and maiming, cutting, biting, etc. (Section 2901.19). Had the Grand Jury determined that appellant had inflicted personal injury upon his wife, appropriate statutes were at its disposal upon which to present an indictment.

The Grand Jury, under the obligation of its oath, was required to “inquire of and present all offenses committed within the county” (Section 2939.08, Revised Code).

The Grand Jury charged appellant with an “assault,” but not with any offense involving the infliction of personal injury.

The indictment was returned under the provisions of Section 2901.241, Revised Code, which reads in part as follows:

“No person shall assault another with a dangerous weapon or instrument or by other means or force likely to produce death or great bodily harm.” (Emphasis added.)

The gravamen of the offense under this statute is “an assault.” An assault does not include a battery or the imposition of personal injury upon another.

An assault with a dangerous weapon requires the presence of the ability to use the weapon — not its actual use. The commission of a battery follows the assault and necessitates the actual physical contact. An assault is an attempt to make physical contact with another and against his will.

4 American Jurisprudence, 144 and 145, Section 33, states the principle in this language:

“As a general rule, to constitute the crime of an assault with a deadly or dangerous weapon, there must be an unlawful attempt with a weapon, deadly or dangerous as a matter of law, or capable of being used in a deadly or dangerous manner, to inflict bodily injury, coupled with the present actual ability to do so.”

The indictment here does not allege any physical contact by the appellant with his wife or the infliction of any personal injury upon her. It charges the appellant with an assault only. The statute under which the indictment was drawn requires no more.

Under the common law, neither husband nor wife is a competent witness to testify against the other. The reason back of the common-law rule was reverence for the home. The rule tends to encourage confidence between husband and wife and lends greater security to the home. That doctrine is still recognized, but, as society became more complex, exceptions to it have been made by statute. However, a statute which is in derogation of the common law must be strictly construed.

This limitation applies to Section 2945.42, Revised Code {supra).

The trial upon the indictment here was an “action,” a “prosecution” or a “proceeding.”

The prosecution here was not founded upon any personal injury inflicted upon Mrs. Antill but upon the threat to do so.

The indictment here is a presentment that appellant committed an assault — and only an assault — upon his wife, — not a battery. Proof of personal injury was not required for conviction in the case at bar. She, in substance, testified that it was accidental and was caused in part by her own action.

An examination of Whipp v. State, 34 Ohio St., 87, discloses substantial authority for the proposition that the wife in the instant case was not competent to testify against her husband. The indictment in the Whipp case, omitting formalities, read as follows:

“And in the name and by the authority of the state of Ohio, do find and present that Lonsdale P. Spensley, Rachel W. Whipp and Alfred Taylor, late of the county of Medina, aforesaid, on the 15th day of September in the year of our Lord one thousand eight hundred and seventy-seven at said county of Medina in and upon the body of Robert Whipp then and there being, unlawfully and feloniously did make an assault, and him the said Robert Whipp then and there did beat, wound, and ill-treat, with intent him the said Robert Whipp then and there, feloniously, wilfully and of their malice aforethought to kill, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the state of Ohio. ’ ’ (Emphasis added.)

That indictment charged both an assault and battery {i. e., a physical injury to) upon the husband of Rachel Whipp. His wife participated in the crime. The husband was willing to testify against her and did so. The court ruled that he was a competent witness. The court, at page 91, speaks as follows:

“We are of the opinion that the exception stated prevails where either the husband or wife is on trial for a personal injury inflicted on the other, and that the party injured is a competent witness against the other.”

At page 90, the court quotes with approval the following from another authority:

“A wife can not be examined as a witness for or against ber husband, or a husband as a witness for or against his wife, except in case of a personal injury committed by the one upon the other, in which case, from necessity, the one may be a witness against the other.”

And quoting further from another authority, the court speaks as follows:

“I conceive it to be now settled, that in all cases of personal injuries committed by the husband or wife against each other, the injured party is an admissible witness against the other.”

The prosecution is in complete agreement with this principle and in its brief has the following to say, at page 88:

“We admit, that, as a general rule, a husband or wife cannot testify in a criminal case for or against each other, but we claim that there is an exception to the rule when the criminal offense consists of personal violence by the husband or wife, the one against the other. In such case, the husband or wife is competent to testify.”

In the case at bar, the trial was a prosecution under an indictment that charges solely and only an assault — it does not charge an injury being done to the wife. Consequently, when the action, prosecution or proceeding is not occasioned by reason of personal injury done by either upon the other, neither the husband nor wife is competent to testify against the other. Section 2945.42, Revised Code.

Brown, J., concurs in the foregoing dissenting opinion.  