ARK.] JENEINS V. STATE.- 625 JENKINS V. STATE. Crim: 3959 Opinion delivered ,Noyember, 4,, 19357 ';•'' 1. WITNESSES—HUSBAND AND WIFE.—At 'common 'law one' SpOuse• is not a competent witness against the other, except in so far,as the rule has been changed by statute. . WITNESSES—HUSBAND AND WIfE.—Crayrford & : Moses' Dig., § 3125, providing that "in any criminal proiecution a husband ancl wife may testify againet each other in; alrcases in Which an injury has been done by either egainst the pekson or Property' Of either," will be strictly construed. • • •. • • • 3. • WITNESSES—HUSBAND AND WIFE.. : -. —The term."property" in Craw-ford & Moses' pig., § 3125, providing that in a criminal prosecution a husband or wife may testify against . each other where injury has been done by either "against the person or PropertY" of the other, the word "property" is 'limited to reel or.'peisonal property and does not include children.
626 JENKINS V. STATE, [191 4. .CRIMINAL LAW—PREJUDICIAL ERROR.—Th a prosecution of a wife for murder of a child . by poisoning, evidence of ° her attempt several weeks before to poison her husband held admissible. Appeal from Pulaski Circuit Court, First Division ; Abner McGehee, Judge; reversed. .C. W. G arner, for appellant. Hearl E.-Bailey, Attorney General, and Guy E. Wil-liams, Assistant, for appellee. HUMPHREVS; J. Appellant was indicted -in the circuit coUrt -of Pulaski County,--First Division, on three separate charges of rmirder for poisoning and killing three Of her children •and on two separate- charges- of assault with intenf 'to kill her husband by poisoning him. She 'Was tried and convicted in said court Upon the-charge 'of murder in the first degree for , killing her daughter, Alta. Fern Jenkins,Tand as - punishment : therefor was adjudged to 'serve a life terrnAn the State . penitentiary, from which judgment ah appeal has been 'duly . prosecuted to' this court. • • - She 'has assigned''a munber of' alleged errors as grounds' for a reverSal of the judgMent, • only one of which is regarded 'by 'the cOUrt as reversible error, viz., the action of the trial court in permitting her husband, Charley Jenkins, to testify against ber in the trial. He testified that on Wednesday . night, November 23, 1934, his wife, the •appellant, filled-eight capsules with quinine out of a blue bottle of quinine he had previously purchased,. which he and their three children took on Wednesday-and . ThurSday nighth with no effect; that on Thursday night he filled ten•capsules out of the same bottle and left them in a brown box where- the quinine bottle was kept; that on the following night about seven o'clock, at the suggestion of appellant, he gave each of the children a caPsule out of the box wfiere he had left the capsules the night before, from the effect of which the three children died that night, and he, himself, came near dying; that at the' time he did not notice a brown bottle in the box with the blue one . ; that prior to this time, on November 3, 1934, he went to Carlisle on a mission for his wife, and that before he left, she . fixed up some liquor for him to take along and told him not to
ARE.] JENKINS V..STATE., - 627 drink it until he -got down the .road 'away from everybody and then to turn it up and drink it all, and that when returning from. Carlisle he tasted it ; :that it was very bitter and made him violently sick so thaffor more than an hour he 'could. not . walk; that, after' returiiing from Carlisle, he told apPellant the effect it had on him, and that some. one must have doped it; whereupon she advised him to pour what was left in the commode, which he did: . , • , The . testiMony -detailed above was prejudicial to appellant in the trial 6f the cattse iti view . of 'the fact 'that it was shown lay other te'stimony 'that prior:to these occurrence§ she had purchaSed froM a druggist under 'an assumed name 'a bottle' of strychnine in a brown, bottle like the • one. found in* the boX With the ' quinine bottle, and in view of the fact that she confessed after the'. death of her children'to having poisoned the whiskey She gave her huSband 'to drink On his trip to . Carlisle, and in view of, the fact 'that prior to her rnifession she had' 'denied' any knoWledge whatever 'Of strYchnine being-in the house.' Under the common law, neither spouse was a competent witness against the other in any kind of a case, for the reason that husband . and wife were one person and to permit one to testify against the other would stir up strife betwe,en them and destroy the sacred marital relationship , existing, between them. The presCrvation of the holy bonds of matrimony was .the inspiration for the rule of evidence by the courts and grounded in what they regarded a safe .public policy. . This court is.thoroughly committed to the rule stated aboye except in so far as it has . been chan o. ed by stkute. WoOdard v. State, 84 Ark. 119, 104 S. W . : 1109 ; Paggett y..State, 125 . ,Ark. 471, 188 . S. W. 1158; Lighi . er v. State; 157 Ark. 261, 247 S. 1065;,Coley v. State, 176 Ark. 654; 3. S. W. (2d) , 980; Robinson v. State, ante p. 455, , , It goes without saying. that :this rule might be changed by statute,' but such statute, being • in derogation of the common law, must be strictly construed. The State, in the instant case,justifies the admission. of the• testimony of Charley Jenkins against his wife . , the, ap-
AIM 628 JENKINS v. STATE. [191 pellant herein, under § 3125 of Crawford & Moses' Digest, which is as follows : "In. any Criminal proseCution, a husband and wife may testify against each other in all cases in which an injury has been done by either against the person or property of either." -_ . Under strict construction of the statute, the word `.` property " does not include children. Verser v. Fort, 37 Ark. 28; Warsaw v. Gimble, 50 Ark. 351, 7 S. W. 389; Coulter y. Sypert, 78 Ark. 193, 95 S. W. 457 ; Anthony v..TarPley, 45 Cal. 72, 187 Pac. 729. Strictly speaking, the word_"Property" as used means only real and personal-property. The statute then means that a spouse may testify against the other in all cases where he or she has. injured the real or Personal property of the other. . It is. urged with much zeal and fervor by counsel for appellant that it was error to admit the written confession , of appellant relative- to her attempt to poison ber husband a short time before this tragedy occurred : first, for the reason that the confession was not voluntary, and, second, because the confession in the main related to a different and independent crime from the charge upon whiCh she was being tried. (1) The evidence was conflicting as to whether any coercion was practiced upon appellant to induce the confession. The court heard evidence pro and con upon this issue before admitting the confession, and his conclusion that it was voluntarily made finds ample support in the testimony. (2) The attempted crime to which she confessed tended to show an identical attempt on her part a few weeks before to commit . the same kind of crime upon one member of ber family for which she was being tried. POison was used in each instance to make away with her husband, and the nearness in point of time so connect the two attempts with the poisoning Of the daughter that it tends to show a plan or scheme on her part to destroy her whole family perhaps for the purpose . of collecting insurance carried upon their lives or that she might have a, better opportunity to associate freely with her alleged paramour.
ARK.] 629 The kindred nature of the'crithes and their'nearness in point, ottime . jUstified the court in admitting the con,. fession she made relatiVe to. her attempt to poiSOn her husband. . i The court fully and correctly instructed the jury in the case. On account of the error indieated, the judgment is reversed, and the cause is remanded • for.a new trial.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.