#### The State of Ohio, Appellee, *v.*Goodin, Appellant.

(Decided December 12, 1938.)

*Mr. Carl W. Rich*and *Mr. Gordon W.*Scherer, for appellee.

*Mr. Hyman B. Rosen*and *Mr. Jos. M. Rheins,*for appellant.

*363Matthews, J.

The defendant was found guilty of cutting one Delia Wright with intent to wound. The court overruled his motion for a new trial and sentenced him to imprisonment in the penitentiary. This is an appeal from that sentence.

Two grounds are assigned for the reversal of the conviction.

(1) The first is that the court erred in permitting the defendant’s wife to testify as a witness for the state over the objection of the defendant, which was made when she was placed upon the stand. The error was also raised by a motion to exclude her testimony, made at the close of her direct examination.

The wife testified that she saw the defendant make an unprovoked assault upon the prosecuting witness.

There is no doubt that her testimony was material and prejudicial to the defendant.

Was she a competent witness for the state?

By Section 13444-2, General Code, it is enacted that:

> “No person shall be 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 shall be competent witnesses to testify in behalf of each other in all criminal prosecutions, and to testify against each other in all actions, prosecutions, and proceedings for personal injury of either by the other, bigamy or failure to provide for, neglect of, or cruelty to their child or children under sixteen years of age; and a wife may testify against her husband in a prosecution under Section 13008, or 13009 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 communication made by one to the other, or act done by either in the presence of the other during coverture, unless the communication was made or act done in the known *364presence or hearing of a third person competent to be a witness, or in case of personal injury by either the husband or wife of the other, or bigamy, or in case of the failure to provide for, or the neglect or cruelty of either to their child or children under sixteen years, of age, or neglect or abandonment of such wife under Section 13008 or 13009; but the presence or whereabouts of the husband or wife shall not be construed to be an act under this section. The rule shall be the same if the marital relation has Ceased to exist.”

It is clear that this section makes the wife a competent witness on behalf of the husband, except as to certain confidential communications or acts, not made in the known presence of a third person competent to be a witness, excluding from such exception prosecutions for certain specific crimes named in the section.

It is also clear that the section makes the wife a competent witness against her husband in prosecutions or proceedings against him for personal injuries inflicted by him upon the wife, for bigamy, failure to provide for his children, and for violation of Sections 13008 and 13009, General Code.

There is certainly no language in this'section which can be considered an express provision making the wife a competent witness against the husband generally, that is, in all categories of cases, civil and criminal. The language seems to exclude the possibility of construing it as implying an intention to clothe the wife with a general competency as a witness against her husband. The courts have not found any such general intent in the language used. *'*

The predecessor of this section was construed in *State*v. *Orth,*79 Ohio St., 130, 86 N. E., 476, 22 L.R.A. (N. S.), 240. Since that decision the section has been amended by providing for the competency of the spouse as a witness in certain enumerated cases. However, the general provision remains the same. The rule of construction, applied to the section as it was *365then, leads to the same conclusion when applied to it in its present form. However, there is this additional sign of the legislative intent. Having provided that the spouse was competent as a witness in specifically enumerated cases shows an intent not to remove the disqualification in the cases not mentioned. In *State*v. *Orth, supra,*the court at 134 and 135 said:

“The only proper effect of the statute — Section 7284 — if interpreted to mean what it says, and its language being plain, only such interpretation is permissible, is: 1. The removal thereby of the interest disqualification, and of disability by reason of the conviction of a crime; 2. To make husband and wife competent witnesses on *behalf*of each other in all criminal prosecutions; 3. To enact and provide that the rule of evidence as to confidential or privileged communications shall not apply, in case of personal injury by either the husband or wife to the other, or in case of the neglect or cruelty of either to their minor children under ten years of age; but that in such cases, husband or wife, testifying on behalf of each other, shall be competent to testify to communications made by one to the other, or acts done by either in the presence of the other, although no third person was present. That the Legislature did hot intend by the adoption of this statute to abrogate, or modify, the firmly established general rule of the common law that husband and wife are incompetent to be witnesses against each other in criminal cases, is at once evident when we consider, that with the whole subject before it for consideration, it enacted, by positive provision and in express terms, that husband and wife shall be competent witnesses on behalf of each other, but declined to thus enact that they should be competent witnesses against each other. If it had been the purpose and design of the Legislature to so relax or change this rule of the common law as to permit husband and wife to testify against each other in the cases in said statute specified, it would *366doubtless have so declared in express and appropriate terms, and it would not have left this purpose to be ascertained or discovered by interpretation, or supplied by mere conjecture.”

See also 42 Ohio Jurisprudence, 232 *et seq.,*Section ■ 228.

(2) In defining the offense of assault and battery, the court in the case at bar said:

> “The crime of assault and battery, which is not malicious and not purposely, but merely in any way touching, with the hands, or anything, another, without lawful justification, that is assault and battery.”

It is assigned as error that this definition omits the essential element of intent. That intent is an essential element is clear. 3 Ohio Jurisprudence, 209 *et seq.,*Section 3; 4 American Jurisprudence, 129 *et seq.,*Section 6; 6 Corpus Juris Secundum, 924, Section 71. What will satisfy the requirement depends upon the circumstances of the ease. In the case at bar appellant confessedly had the intent to injure the prosecuting witness, the only question being whether he acted in self-defense.

There is an additional reason that the error was not prejudicial. The jury did not find the appellant guilty of assault and battery. As it found him guilty of cutting to wound, it had no occasion to apply the definition — and did not.

The judgment is reversed for error in permitting the appellant’s wife to testify on behalf of the state and the cause is remanded for further proceedings according to law.

*Judgment reversed and cause remanded.*

Ross, P. J., and Hamilton, J., concur.