dissenting. I dissent from the ruling of the court set out in the second headnote and corresponding diidsion of the opinion. The serious and controlling- question in this case is *334whether the wife of the defendant was competent to testify against him on his trial under this indictment, as to the felonious and malicious assault which resulted in the death of their child. The court confined the testimony of the wife strictly to the facts of this assault, and did not permit her to testify that such assault resulted in the homicide of the child. The Penal Code declares: “Husband and wife shall not be competent or compellable to give evidence in any criminal proceeding for or against each other, except that the wife shall be competent, but not compellable, to testify against her husband upon his trial for any criminal offense committed, or attempted to have been committed, upon her person. She is also a competent witness to testify for or against her husband in cases of abandonment of his child, as provided for in section 116 of this Code.” Penal Code (1910), §1037(4). The Penal Code likewise declares that the wife is a competent witness against her husband when he is charged with whipping, beating, or otherwise cruelly maltreating her. Penal Code (1910), § 104.
Under the section of the Penal Code above cited, the wife is competent “to testify against her husband upon his trial for any criminal offense committed, or attempted to have been committed, upon her person.” If the husband attempts to commit a felonious and malicious assault upon his wife by shooting at her and misses his mark and kills their infant child, can the wife testify against him, as to the assault upon her, on his trial for the homicide of their child? It is insisted that she is incompetent, because the husband is on trial for the homicide of the child, and not for the felonious and malicious assault upon his wife. In support of this proposition counsel for the defendant rely upon the ease of State v. Woodrow, 58 W. Va. 527 (supra). The majority opinion in that ease holds that the wife, under the identical state of facts involved in the instant ease, was incompetent to testify against the husband. This ruling was put upon the ground that the prisoner’s act of shooting the child was not a crime against the wife, that it was not violence against her person, and that it has to be such to bring the wife within the exception to the rule which renders her incompetent to testify against her husband. This ruling would be well founded if the husband kills his child independently of any assault upon his wife. The flaw in the argument to support the ruling in the Woodrow' case is, that it assumes that the act of *335shooting at the wife feloniously and maliciously and of missing his mark and killing his child did not involve a crime both against the wife ancl the child. The essence of the crime against the child consisted of the felonious and malicious attempt upon the life of the mother. There was no crime against the child'if there was no crime against the mother. I think the better rule is stated in Clarke v. State, 117 Ala. 1 (23 So. 671, 67 Am. St. R. 157). In that case the Supreme Court of Alabama said: “In a prosecution for murdering an infant child, alleged to have, been caused by defendant beating his wife before its birth, the wife is a competent witness for the defense.” Clearly, if she is a competent witness for the defense, she is a competent witness for the State. In the case last cited the Supreme Court of Alabama said: “In relation to the competency of husband ancl wife as witnesses for or against each other in criminal cases or proceedings, we have no statute which changes or modifies the common law. By the common law, in all cases of personal injuries committed by husband or wife against each other the injured party is an admissible witness against the other. 1 Greenl. Ev. § 343; 1 Bish. New Cr. Proc. §§ 1151-1155; Whart. Cr. Ev. § 393 et seq. This exception to the general rule excluding husband and wife as witnesses for or against each other, it may be, originally grew out of a supposed necessity of the protection of the wife against personal violence, threatened or actual, by the husband. Whatever may have been the origin of the exception, it is now recognized as extending to all cases in which the element of personal violence to the wife is a necessary constituent of the offense. . . Wherever the element of personal violence is a necessary constituent of the offense, every reason exists upon which the exception rested originally, and for the sake of public justice the wife should be admitted as a witness. And in all cases in which she is admissible against, she is admissible for, the husband.” The dissenting opinion in the Woodrow case, supra, rests upon the same line of reasoning. The wife by the common law was made a competent witness against the husband in offenses committed, or attempted to be committed, upon her person, ex necessitate rei. Our statute embraced in Penal Code (1910), § 1037 (4), is but an affirmation of the common-law principle. I see no valid reason why the wife, under the facts of this case, should not from necessity be a competent witness to testify against *336the husband. The homicide was committed in the privacy of the home of defendant. There was no eye-witness to the tragedy except the wife. She was sitting in the corner of their bedroom by a dresser, when, without excuse, mitigation or justification, the husband told her to stand out, that he was going to kill her. She appealed to him not to kill her. He pushed her back, repeating that he was going to kill her, and shot twice at her with an automatic pistol. He missed ins wife but killed their baby in the arms of the mother. -I see no reason why, under the common-law rule and our statute which adopts that rule, and under the facts of this case, the wife was not a competent witness against the husband, under the exception to the general rule which disqualifies licito testify against her husband when charged with crime.