Commonwealth v. Moore

Opinion by

Mr. Justice Eagen,

On December 10, 1970, the appellant, J. B. Moore, was convicted by a jury in Mercer County of voluntary *304 manslaughter. Post-trial motions were denied, and on June 29, 1972, Moore was sentenced to serve a term of imprisonment of not less than one and one-half and not more than three years in a state correctional institution. He was given credit for two hundred and nineteen days already served in the county jail. This appeal was then filed.

The prosecution followed the fatal shooting of one Ben Jones, in the living room of Moore’s home. 1 Moore appeared intoxicated at the time 2 and no motive for the shooting was evident.

At the time of the occurrence, Moore’s wife and Ernestine Kitt were in the kitchen of the house and did not witness the shooting. However, according to the trial testimony of Miss Kitt, who was called as a Commonwealth witness, both women rushed into the living room after hearing the shot and Mrs. Moore asked her husband, “why did you shoot Ben?” to which Moore replied “because he shot me.” 3

Testifying on his own behalf, Moore stated the gun discharged accidentally when Robert Pritchett who was also in the living room at the time “grabbed the gun.” He also said he did not realize Jones was shot until some time later.

Mrs. Moore was not called as a witness by either side, and in his summation the district attorney was permitted, over objection, to argue to the jury that Moore’s failure to call his wife as a witness permitted the jury to draw the inference her testimony would be *305 unfavorable to Ms defense. In Ms charge the trial judge also instructed the jury such an inference was permissible.

Generally, when a potential witness is available to only one of the parties to a trial, and it appears this witness has special information material to the issue, and this person’s testimony would not be merely cumulative, then if such party does not produce the testimony of this witness, the jury may draw an inference if would have been unfavorable. See McCormick, Law of Evidence, 534 (1954). See also Bentivoglio v. Ralston, 447 Pa. 24 , 288 A. 2d 745 (1972), and Commonwealth v. Wright, 444 Pa. 536 , 282 A. 2d 323 (1971). Accepting Mrs. Moore possessed information material to the issue instantly, the question remains, should this inference be permitted in a criminal case where the uncalled witness is the spouse of the defendant. We rule it should not.

In Pennsylvania a husband and wife are incompetent to testify against each other in a criminal trial except under certain limited circumstances, not relevant here. Act of May 23, 1887, P.L. 158, §2(b), as amended, 19 P.S. §683. 4 Under the facts of the instant case, *306 the operation of the evidentiary inference comes directly into conflict with the common law and the Pennsylvania statutory rule on incompeteney of spouses. As far as we have been able to ascertain the last time this Court considered this question was in Commonwealth v. Weber, 167 Pa. 153 , 31 A. 181 (1895), 5 and the Court therein ruled it was proper for the counsel for the Commonwealth to argue to the jury it might infer that if called the wife’s testimony would be adverse to her husband. We have reconsidered the question, and now rule it was improper for the district attorney and the trial judge to advise the jury it could draw an adverse inference from the defendant’s failure to call his wife as a witness, thus, we overrule Weber. In so doing, we recognize there is a split of authority on this *307 question, 6 and a body of law which reaches a contrary conclusion to that reached herein; however, we view the rationale adopted today as the approach most consistent with the statutory law.

Our reason for so holding finds its genesis in the aforementioned statute. It is clear the purpose of the statute is to bar, either husband or wife, from testifying against the other, and this is a rule which is not waivable by the parties. 7 If the inference is allowed to operate, the whole purpose and effect of the statute would be negated. The statute by its very terms stops either spouse from adversely affecting a criminal case against the other; although it does allow a spouse to testify on behalf of the other. If the inference is allowed to operate, the very fact the spouse is not called adversely affects the other spouse. Thus, the protection which the legislature vested in the defendant-spouse would be completely eroded by the evidentiary inference. To hold otherwise, would be to give the spouse protection with one hand, and, at the same time take that protection away with the other.

Because of the foregoing ruling, we deem it unnecessary to reach the merit of the other asserted assignment of error.

*308 Judgment reversed and a new trial is ordered.

Mr. Chief Justice Jones took no part in the consideration or decision of this case.

A postdeath autopsy disclosed the fatal wound was caused by a bullet which entered the body between the third and fourth ribs and pierced the heart.

A toxicology test after the shooting disclosed 230 milligrams of alcohol for 100 CC. of whole blood.

A medical examination shortly after the occurrence disclosed Moore was suffering from a wound of the hand.

The statute reads as follows:

Ҥ683 Husband and Wife as witnesses against each other

"Nor shall husband and wife be competent or permitted to testify against each other, or in support of a criminal charge of adultery alleged to have been committed by or with the other, except that in proceedings for desertion and maintenance, and in any criminal proceeding against either for bodily injury or violence attempted, done or threatened upon the other, or upon the minor children of said husband and wife, or the minor children of either of them, or any minor child in their care or custody, or in the care or custody of either of them, each shall be a competent witness against the other, and except also that either of them shall be competent merely to prove the fact of marriage, in support of a criminal charge of adultery or bigamy alleged to have been committed by or with the other.” Emphasis supplied.

*306 This is a competency statute to be distinguished in purpose and effect from the rules governing privileges or confidential communications. See generally, Federal Rules of Evidence, 505 and 513.

The Weber Court stated: “The first assignment is:—‘The court erred in allowing counsel for commonwealth to comment on failure of defendant to call his wife as a witness.’ The wife saw her husband kill her father; she was incompetent as a witness for the commonwealth, because she could not be called to testify against her husband; she was, however, a competent witness in his behalf; he could have called her to the stand; if his statement was true that he acted only in self-defense, and the pistol was discharged in a scuffle, without intent to kiU, why did he not call her to corroborate him? Counsel for commonwealth argued, the fair inference was, her testimony would have contradicted her husband; this was not unwarranted comment; the force of it was for the jury; if she had been a competent witness for the commonwealth, and had not been called, it would have been allowable for defendant’s counsel to have argued it was because her testimony would have contradicted Miller. There is, under the circumstances, no legal presumption raised by the refusal to call a competent witness; it is simply a fact for the consideration of the jury, entitled to such weight, as, in view of all the circumstances for the particular case, it ought, in their judgment to have.” Id. at 161-62, 31 A. at 482 .

See generally Annot. 5 A.L.R. 2d 893 (1949).

In Canole v. Allen, 222 Pa. 156 , 70 A. 1053 (1908), the Court stated: “At common law husband and wife are incompetent to testify against each other. This rule has never been relaxed; on the contrary, it has been reinforced and guarded from invasion by statutory enactment Our Act of May 23, 1887, P. L. 158, defining competency, is more than confirmatory of the common-law rule; it declares in express terms that neither shall be permitted to testify against the other, a prohibition of which both the parties to the suit and the trial judge as well, are bound to take notice. Connivance by the parties cannot evade it, nor can indulgence by the court. The language of the act is: ‘Nor shall husband or wife be competent or permitted to testify against each other.’ ” Id. at 159 , 70 A. at 1055 .