State v. Mowery

William B. Brown, J.,

concurring in part and dissenting in part. I am indeed heartened by the fact that this court has finally, as a majority, recognized the separate legal identity of women and has forever discarded the archaic and anachronistic unity principle which has long been employed to preclude a woman from enjoying the same full legal rights as are afforded her husband. I have long recognized and supported full legal rights for women (see my dissents in Varholla v. Varholla [1978], 56 Ohio St. 2d 269 [10 O.O.3d 403], and Bonkowsky v. Bonkowsky [1982], 69 Ohio St. 2d 152 [23 O.O.3d 188]), and I am glad to see that at least five of the present justices now join me.6

The majority in this case holds that spouses are competent to testify against each other because it soundly rejects the long-held doctrines that a wife is a chattel of her husband and that, by marriage, a husband and wife are one in the law. Since these are the very principles which underlie the doctrine of interspousal immunity and which were recently used by this court to uphold this antiquated doctrine (see Bonkowsky, supra), it logically follows that this court, as it is now constituted, would now abolish the doctrine of interspousal immunity.

In my opinion, and paraphrasing the majority, there is no area of the law which begs more for the “constant application of logic by rational thinking individuals” than that of interspousal immunity. Of course, the General Assembly has the power to discard, once and for all, the anachronistic doctrine of interspousal immunity, and I urge them to do so. I also strongly urge the legal community to present the issue of interspousal immunity to this *204court so that this doctrine can finally receive the burial it so rightfully deserves.

While I agree with the principles espoused in the majority opinion, I must nevertheless dissent, for I find them largely irrelevant and inappropriate to the resolution of the issues at bar. As discussed by Justice Locher and Chief Justice Celebrezze in dissent, Evid. R. 601(B) clearly renders Mrs. Mowery incompetent to testify in appellee’s aggravated murder prosecution. I further concur in the dissenters’ position that dissatisfaction with this rule is best remedied by amending the rule rather than by employing a strained judicial interpretation.

I would note that my colleagues have made slow but steady progress in this direction as evidenced by the 6-to-l vote in Varholla v. Varholla (1978), 56 Ohio St. 2d 269 [10 O.O.3d 403], and a 4-to-3 vote in Bonkowsky v. Bonkowsky (1982), 69 Ohio St. 2d 152 [23 O.O.3d 188].