BEFORE PATTERSON, C.J., HAWKINS & ROBERTSON, JJ.
PATTERSON, CHIEF JUSTICE, FOR THE COURT:
Patricia Karen Stubbs was convicted of aggravated assault and sentenced to serve ten (10) years in the custody of the Mississippi Department of Corrections by the Circuit Court of Pearl River County.
On September 9, 1981, Patricia and her husband, Larry Stubbs, were estranged. Desiring to speak to her husband, Patricia went to his home in Picayune and waited until her husband arrived from his work. Although she endeavored to speak with him, Larry ignored her and went into the house and latched the door. Larry's
mother told him that Patricia wanted to speak with him, but he responded that he didn't want to talk to her. On hearing that, Patricia said, "You bad M.F., stay here till I get back. I am going to show all of y'all something."
Thereafter Larry went into the yard of his home and with his brother began working on a disabled van. As they were working, Patricia appeared, drew a pistol and fired three times. Larry was struck in the right shoulder and his brother, Grayson, was struck in the foot. Evidently the third shot went astray.
Patricia Stubbs appeals and assigns as error:
1. The trial court erred in compelling the defendant's husband to testify against her when he was unwilling to do so;
2. The trial court should have granted an instruction for a lesser offense; and
3. An oral statement of the trial judge to the jury may have improperly influenced their verdict inasmuch as the jury was led to believe their recommendation of leniency would be taken into consideration.
We first consider whether the court erred in compelling Larry Stubbs to testify against his wife when he was unwilling to do so. Mississippi Code Annotated, 13-1-5 (Supp. 1983), provides:
Husbands and wives may be introduced by each other as witnesses in all cases, civil or criminal, and shall be competent witnesses in their own behalf, as against each other, in all controversies between them. Either spouse is a competent witness and may be compelled to testify against the other in any criminal prosecution of either husband or wife for a criminal act against any child, for contributing to the neglect or delinquency of a child, or desertion or nonsupport of children under the age of sixteen (16) years, or abandonment of children. But in all other instances where either of them is a party litigant the other shall not be competent as a witness and shall not be required to answer interrogatories or to make discovery of any matters involved in any such other instances without the consent
of both. We first observe the statute provides (1) either spouse may introduce the other as a witness in all cases between them; (2) either spouse is a competent witness to testify against the other for a criminal act against a child; (3) in all other instances where either is a party litigant the other spouse shall not be competent as a witness.
We next note that Larry Stubbs objected to testifying against his wife and based his objection upon Mississippi Code Annotated, 13-1-5 (Supp. 1983). The objection was overruled and Larry was compelled to testify against his wife, the court being of the opinion the crime charged was against the peace and dignity of the State of Mississippi and was not a domestic difficulty between the defendant and the witness. The posture of this case does not conform to either of the categories of Section 13-1-5 making one spouse a competent witness in that Larry was introduced as a witness not by his spouse but rather by the State of Mississippi, and neither did the charge concern a criminal act against a child. It is therefore urged that the third category of the section controls. It provides that in all other instances where either spouse is a party litigant the other shall not be competent as a witness against the other. Doubtless the statute makes no provision for a case in the posture of this one and since this is so, we need turn to the common law for guidance.
In Turner v. State, 60 Miss. 351, 353-54 (1882), it is held:
Stating the question most strongly for the appellant, it is this: Is the wife a competent witness against the husband in a prosecution against him for an injury to her person, when she objects to giving evidence?
The reasons why husband and wife were incompetent for or against each other at common law were: First, the unity of person and interest subsisting between them; and, secondly, the regard which the law had for the harmony of the marital relation, to preserve which neither spouse was permitted to testify against the other.
But at common law a wife was competent to testify against her husband in a prosecution
for assault and battery on her. In such cases, the husband, having violated the sanctity and peace of the household, it was deemed more consonant with the interest of the public that the wife should gain protection through his punishment, than that she should be subjected to the danger of neglect and injury inflicted in the privacy of domestic life, by the husband, who had the power to exclude from its precincts all competent witnesses of his offences.
The exception was permitted for the protection of the wife; but it was a protection afforded to her not purely as an individual, but as one of the public. Punishment is not inflicted by the law upon a wrong-doer to deter him or others from again wronging the particular individual injured, but to deter him and others from again injuring any person whatever. The husband, therefore, who assaults his wife, commits an injury, not only upon her, but upon society, of which they are members. It is for the injury to the public, committed upon it through the person of the wife, that he is punished. It is for the protection of society, and of the wife as a member of society, that she is made competent as a witness against the husband, for injuries committed by him on her. It is the ...