concurring in part and dissenting in part.
Except for the docket number and case name, the circulating opinions in this case bear no resemblance to the cause that was certified to us by the Court of Appeals for review and disposition. While the majority’s rhetorical’ treatment of the battle of the sexes from Adam and Eve to Mork and Mindy stupefies the reader for its ideological pronunciamentos, it fails to analyze the *201critical consideration at bar — whether Evid. R. 601(B) renders Mrs. Mowery incompetent to testify against Mr. Mowery in his prosecution for the murder of Harley E. Laughlin.
If we begin our analysis with the precise wording of Evid. R. 601(B) — which is, I suppose, where most lawyers, laymen and even judges would'advise us to begin — the conclusion is patently inescapable that Mrs. Mowery is not competent to testify in appellee’s aggravated murder prosecution. Evid. R. 601 provides in pertinent part:
“Every person is competent to be a witness except: * * * (B) A spouse testifying against the other spouse charged with crimes except crimes against the testifying spouse or the children of either and;”
Furthermore, the relevant portion of the Staff Note to Evid. R. 601 reads as follows:
“Rule 601(B) Spouse Testifying
“R.C. 2945.42 governed the competency of a spouse to testify in a criminal prosecution involving the other spouse and continues to govern the privilege accorded to a spouse. The concepts are to be distinguished. Rule 601 is directed to competency. Rule 501 is directed to privilege and is a general rule serving to maintain R.C. 2945.42 as to privilege. Rule 601 (B) modifies R.C. 2945.42 as to competency.
“R.C. 2945.42 provided that a spouse could testify in behalf of the other spouse in all criminal prosecutions. That concept is preserved by declaring all persons to be competent witnesses. R.C. 2945.42 provided that a spouse could not testify against the other spouse in a criminal prosecution, but could testify against the other in actions and proceedings, for personal injury of either by the other, bigamy, failure to provide for, neglect of, or cruelty to children under eighteen, twenty-one if mentally or physically handicapped. Additionally, the statute provided that a wife could testify against her husband in a prosecution for felonious assault, aggravated assault, assault, non-support of dependent, or endangering children based upon cruelty to, neglect of, or abandonment of the wife. Rule 601(B) is less restrictive than the statute was under the former practice. The rule establishes the absence of competence in a spouse to testify against the other spouse in a criminal prosecution with the broad exception of any crime against the testifying spouse or any crime against the children of either spouse. No age limit is set for such child, and the language is broad enough to encompass all adult children as well as minors.
“Rule 601(B) supersedes R.C. 2945.42 as to spousal competency, but not as to spousal privilege.” (Emphasis added.)
Given this specific, unambiguous, straightforward language, the majority opinion, in concluding that Mrs. Mowery is competent to testify against her husband for the Laughlin murder, ends, like an O. Henry short story, with a surprise.
"While I am fully cognizant of the criticism that the concept of spousal competency has received from the commentators, see, e.g., McCormick on Evidence (2 Ed. 1972), Section 66, I am also constrained to point out that *202whether or not the rationale of Evid. R. 601(B) is supportable is beside the point in this case. In its present posture, the case does not require us to pass upon the reasons for or wisdom of Evid. R. 601(B), but rather, to construe the rule as it is written. If the rule on spousal competency should be eliminated — as I think it should be — then the majority’s ad hoc amendment of the rule, under the guise of judicial review, is not the legally appropriate mechanism by which to reform Ohio law on this point. Rather, pursuant to Section 5(B), Article IV of the Ohio Constitution,5 this court, under its constitutional rulemaking authority, should redraft Evid. R. 601(B) and submit it to the General Assembly.
As this court recently ruled in In re Hamil (1982), 69 Ohio St. 2d 97, 104 [23 O.O.3d 151] (per Krupansky, J.):
“The courts in making decisions must keep the problems with which they deal in perspective. The division of power as granted by the Constitution to the three branches of government must be kept in mind at all times. * * * The courts, on the other hand, must interpret the law and must not legislate. If a conclusion other than that promulgated herein is required, the General Assembly must speak.” (Emphasis added.)
Unfortunately, the majority opinion subjudice exhibits a distressing lack of comprehension of the concurrent power which this court and the General Assembly share for the promulgation — or amendment — of the rules of evidence. See Giannelli, The Proposed Ohio Rules of Evidence: General Assembly, Evidence, and Rulemaking, 29 Case West. Res. L. Rev. 16.
My final objection to the majority opinion concerns the confusion and uncertainty which it causes within the legal profession. As was recently observed in the DeHart v. Aetna Life Ins. Co. (1982), 69 Ohio St. 2d 189, 199 [23 O.O.3d 210]:
“It has always been a point of bewilderment to me why so much time and money is expended and committees are appointed to formulate rules to facilitate the orderly and expeditious progression of cases through our court system, then the rules are ignored with impunity. If the popular theory is to ignore the rules with impunity as the majority advocates, then dispense with the rules altogether. Why have them on the books? * * * The majority decision hardly fosters or encourages a strong, informed and learned bar.
“The majority opinion accomplishes not only the above stated results, but *203also accomplishes disillusionment and chaos within the legal profession.” (Emphasis added.) (Krupansky, J., dissenting opinion.)
In my judgment, Evid. R. 601(B) should not be invalidated, in ipse dixit fashion, simply because the current justices of this court would have authored a different rule if they had been meihbers of the Evidence Rules Advisory Committee or the Joint Select Committee of the General Assembly from 1975 through 1980. It is precisely this type of Kafkaesque judicial alchemy, where a reviewing court upholds some rules of evidence but not others, that encourages disregard for all the rules of evidence and foreshadows their future devitalization.
The bottom line, then, is that the majority opinion, in authorizing Mrs. Mowery to testify against her husband in his prosecution for the murder of Laughlin, is demonstrably incorrect, plainly disingenuous, intellectually dishonest and institutionally flawed. Since the majority unearths an exception which I cannot find in my copy of Evid. R. 601(B), I am unable to join in such an exercise of raw judicial power.
Section 5(B), of Article IV of the Ohio Constitution, in part provides: “The supreme court shall prescribe rules governing practice and procedure in all courts of the state, which rules shall not abridge, enlarge, or modify any substantive right. Proposed rules shall be filed by the court, not later than the fifteenth day of January, with the clerk of each house of the general assembly during a regular session thereof, and amendments to any such proposed rules may be so filed not later than the first day of May in that session. Such rules shall take effect on the following first day of July, unless prior to such day the general assembly adopts a concurrent resolution of disapproval. All laws in conflict with such rules shall be of no further force or effect after such rules have taken effect.”