Brister v. Dunaway , 149 Miss. 5 ( 1927 )

ON SUGGESTION OF ERROR. Complaint is made in the suggestion of error that the opinion rendered was wholly silent as to the principal error assigned, upon which appellant relied:

"That the trial court committed grievous error, in that it permitted (as shown by the record, and as indicated in appellant's original brief), over the strenuous objection of the defendant there, appellant here, the wife or spouse of appellee to testify as to she having been seduced and debauched by appellant."

The citation in the suggestion of error of the law to support the contention under this assignment relates to declarations of the other spouse on the ground that they are regarded as confidential communication, and that declarations of such parties are not admissible to show illicit relations.

In the case before us the proof did not relate to ex parte declarations of the wife as to alleged acts, but the wife was introduced as a witness and testified on the witness stand to said matters. The law with reference to mere declarations being inadmissible in evidence against a party, or in his favor, relates to unsworn statements or declarations extrajudicial in nature. The authorities cited have no application to the testimony of witnesses delivered on the witness stand pertinent to the issue, as of knowledge and recollection of the witness. The statute expressly makes the wife a competent witness in favor of the husband, and the husband a competent witness in favor of the wife. The wife here was competent to testify in behalf of her husband to any matters of fact, pertinent to the issue, which any other witness could testify to.

It is true that the opposite party cannot introduce such husband or wife as a witness against their spouse, but they may be introduced for each other. The fact that they can testify in suits between themselves has no relation to this suit. The testimony complained of was not extrajudicial, but was sworn testimony, made competent by statute.

The suggestion of error will therefore be overruled.

Overruled.