Smith was indicted for the murder of one Gus Johnson, convicted and sentenced to the state penitentiary for life, the jury disagreeing as to the punishment. Smith appeals. He assigns as errors (1) the refusal of the court to grant his request for a peremptory instruction for insufficiency of proof to show his guilt, (2) the granting of *Page 477 a certain instruction to the state, and (3) the erroneous admission on behalf of the state of evidence of statements made by Smith's wife as hereinafter set out.
The first assignment is not well taken. The proof is ample to support his conviction.
The instruction is not properly worded, but, under the state of the proof herein, would not constitute reversible error. If it is requested and granted on a new trial, it may be in different form.
But the case must be reversed and remanded for the erroneous admission of testimony. Gus Johnson, under the pretense of taking Mary Smith, appellant's wife, from Smith's home to her sister's house, had carried her to his own. She had been at Johnson's house about a week when Smith there shot and killed Johnson. Smith had been to Johnson's three times seeking to get his wife to return home, which she had refused to do. Smith, on cross-examination, was asked: "On one occasion when you went there to get your wife to get her to come home, didn't she, in the presence of Mildred Walters, tell you that she was not going back, because you would not let her live at home, and she was going to get a divorce from you? A. No, sir." Counsel for Smith objected to this question and asked the court to exclude it and enter a mistrial because of the error, all of which the court overruled. After the defendant had rested his case, Mildred Walters, a woman twenty-two years of age, who was also staying at Johnson's house, was placed upon the stand by the state, and the district attorney asked her this question: "I will ask you this further question. Did Richard Smith's wife tell him on that occasion that she was not going home, because he would not let her stay, and she was going to get a divorce from him, and she was not going back? A. Yes, sir." Counsel for defendant objected to this and moved the court to exclude it because incompetent, irrelevant, and immaterial. The court overruled the objection, and the witness in *Page 478 response to another question, repeated that Mary did make that statement. Counsel again objected and asked for a mistrial, which was overruled. It will be noted that this supposed conversation was not on the occasion of the shooting.
Not deciding the question of relevancy under the defense made herein, the testimony was certainly incompetent. The wife herself could not have thus testified over the objection of the husband. She was incompetent as a witness against him over his objection. Section 1528, Code 1930. If the wife could not have so testified personally and directly, she could not be made a witness nor the testimony made competent in this indirect and hearsay manner. Naturally, such testimony was very damaging to the defendant. Garner v. State, 76 Miss. 515, 25 So. 363; Pearson v. State,97 Miss. 841, 53 So. 689; Davis v. State, 157 Miss. 669,128 So. 885, 886.
The state contends the error was waived because Smith did not in his objection specifically point out in what respect the proof was incompetent, citing Jackson v. State, 163 Miss. 235,140 So. 683, 684. In that case it was said: "The only exception to this rule is that when, `on the face of the evidence, in its relation to the rest of the case, there appears no purpose whatever for which it could have been admissible, then a general objection, though overruled, will be deemed to have been sufficient.'" The evidence could not have been competent for any purpose if given by the wife, or any other person, "in its relation to the rest of the case" here made.
The state further says that Smith cannot take advantage of this because his own testimony shows that he is guilty, citing Graham v. State (Miss.), 179 So. 340, 341, and King v. State, 185 Miss. 433,188 So. 554. Admitting, for the sake of the rule, that the evidence so proves, yet it is stated in the Graham case that the rule does not apply where the error is "so grave as to deny the accused a fundamental right," and in the King case that, where *Page 479 the conviction is adequately sustained by the testimony of the defendant himself, "any error in order to work a reversal must be one which obviously is obnoxious to the indispensable fundamentals of criminal procedure." This evidence, so introduced, is within both exceptions.
Reversed and remanded.