concurring. I agree that the conviction of appellant must be reversed for failure to give defendant’s requested instruction No. 1 on carnal abuse. I do not agree with the majority that there was any prejudicial error in the trial court’s refusal to grant a mistrial. I take the majority opinion to state that a wife cannot ever be used as a witness by the State when the offense charged is not against her or her property. If this is the position of the majority, I am certainly in disagreement. In the first place, I cannot agree that we did not hold such an action to be nonprejudicial in McDonald v. State, 225 Ark. 38, 279 S. W. 2d 44. It is true that the court bolstered its holding by stating that no objection was made by the appellant there to the court’s action. The trial court’s action .there was to hold the wife called by the prosecuting attorney incompetent and to advise the jury of her incompetence. The really pertinent holding was that the offer was not prejudicial. In opening the discussion of this alleged error, this court said:
“Appellant in Assignment 2 argues that the State erred in offering as a witness appellant’s wife knowing that she could not be compelled to testify against her husband (by virtue of 43-2019, 43-2020), and that this offer prejudiced the jury against him. We do not agree.”
In the next place, I think that the courts’ holding in the McDonald case was correct. It is true that our opinions almost universally refer to both the common law and statutory rules pertaining to testimony of a wife either for or against a husband as going to the competency of the witness. Inman v. State, 65 Ark. 508, 47 S. W. 558; Woodard v. State, 84 Ark. 119, 104 S. W. 1109; Padgett v. State, 125 Ark. 471, 188 S. W. 1158; Dean v. State, 139 Ark. 433, 214 S. W. 38; Satterwhite v. State, 139 Ark. 605, 214 S. W. 44; Witham v. State, 149 Ark. 324, 232 S. W. 437; Lighter v. State, 157 Ark. 261, 247 S. W. 1065; Conley v. State, 176 Ark. 654, 3 S. W. 2d 980; Robison v. State, 191 Ark. 455, 86 S. W. 2d 927; Reed v. State, 222 Ark. 119, 257 S. W. 2d 362. Actually, however, the rule that one spouse may not testify against the other should be considered as a privilege. Matthews, Evidentiary Privileges & Incompetencies of Husband & Wife, 4 Ark. Law Eev. 426; 8 Wigmore, Evidence § 2227 et seq. ((McNaughton rev. 1961). I find nothing in our cases which actually treats this rule other than as a privilege, even though the terms “incompetency” and “incompetent” are used. Our General Assembly has specifically referred to the rule as stated in Ark. Stat. Ann. § 43-2019 as the husband-wife privilege. It seems to me that the privilege is that of both the party and the witness, and that either could claim it. 8 Wigmore, Evidence § 2241, p. 254 (MclS[aughton rev. 1961). This court has recognized that one spouse has a right not to assist in the prosecution of the other when the offense is not against the former. Taylor v. State, 220 Ark. 953, 251 S. W. 2d 588.
Regardless of whether the rule is treated as creating an incompetency or a privilege, its application may be waived. An objection to the incompetency of a witness must be made as soon as it appears. Thrash v. State, 146 Ark. 547, 226 S. W. 130. A specific objection is necessary to raise the question of incompetency. Mosley v. Mowhawk Lbr. Co., 122 Ark. 227, 183 S. W. 187; Mahoney v. Roberts, 86 Ark. 130, 110 S. W. 225. Failure to make timely objection constitutes waiver. Sanders v. State, 175 Ark. 61, 296 S. W. 70. This seems to be in keeping with the majority rule. See, e. g., the following cases where the husband and wife status is involved. Olender v. United States, 210 F. 2d 795, 42 ALR 2d 736 (1954); People v. Wilkins, 135 Cal. App. 2d 371, 287 P. 2d 555 (1955); Hembree v. Commonwealth, 210 Ky. 333, 275 S. W. 812 (1925); Huff v. State, 176 Miss. 443, 169 So. 839 (1936); State v. Hill, 76 S. W. 2d 1092 (Mo. 1934); State v. Palen, 119 Mont. 600, 178 P. 2d 862 (1947); Parrish v. State, 167 Tex. Crim. 404, 320 S. W. 2d 853 (1959); State v. Bledsoe, 325 S. W. 2d 762 (Mo. 1959). If the rule accords a privilege, it is certainly subject to waiver by one in whose favor it exists. National Annuity Ass’n v. McCall, 103 Ark. 201, 146 S. W. 125; Wooten v. Wooten, 176 Ark. 1174, 5 S. W. 2d 340; Schirmer v. Baldwin, 182 Ark. 581, 32 S. W. 2d 162; 8 Wigmore, Evidence (MeNaughton rev. 1961) § 2242, p. 256. Either spouse may claim the privilege, so waiver would have to be by both.
The statute [Ark. Stat. Ann. § 43-2019 (Repl. 1964) ] is in derogation of the common law and must be strictly construed. Jenkins v. State, 191 Ark. 625, 87 S. W. 2d 78. This construction is to be taken most strongly against change in the common law and the intent to change the common law must be clear. Crawford, Statutory Construction, § 228, p. 422. See Thompson v. Treller,. 82 Ark. 247, 101 S. W. 174; Hackney v. Southwest Hotels, 210 Ark. 234, 195 S. W. 2d 55; Raney v. Gunn, 221 Ark. 10, 253 S. W. 2d 559; Thompson v. Chadwick, 221 Ark. 720, 255 S. W. 2d 687. It appears from an examination of § 43-2019 (Act 14 of 1943) that there was no intention to change the common law so as to make absolute the exclusion of one spouse as a witness on trial of the other in a criminal action. If there is doubt from reading the statute, resort to the title of the act will dispel it. The title reads: “An Act To Permit A Husband Or Wife To Testify For The Other In Criminal Actions.” Obviously, this was the only change of the common law intended.
This court has already recognized that there may be a waiver of the rule. In Dillon v. State, 222 Ark. 435, 261 S. W. 2d 269, a defendant’s wife was called as a witness by him. On cross-examination most of the questions propounded were outside the scope of the direct examination, but no objection was made until the examination had been pursued rather extensively. The court said that this interrogation was improper but that the rule did not help the appellant there because his objection was tardy and not specific.
There is a very close analogy to the application of the husband-wife rule as declared by statute and the Dead Man’s Statute set out in Schedule Sec. 2. Section 43-2019 says that in a criminal action a husband or wife cannot be called by the opposite party. Schedule 2 says that in actions by or against executors, administrators or guardians, neither party shall be allowed to testify as to transactions with or statements of the testator, intestate or ward, unless called by the opposite party. The language seems just as prohibitory in one statute as the other. The Dead Man’s Statute has also been treated as relating to the incompetency of the witness. Park v. Lock, 48 Ark. 133, 2 S. W. 696; Bush v. Prescott & Northwestern Ry. Co., 83 Ark. 210, 103 S. W. 176; Bradford v. Reid, 202 Ark. 108, 149 S. W. 2d 51; Harris v. Whitworth, 213 Ark. 480, 211 S. W. 2d 101; Bush v. Evans, 218 Ark. 470, 236 S. W. 2d 1013. On the other hand, it, too, has been considered to recognize or establish a privilege. Lisko v. Hicks, 195 Ark. 705, 114 S. W. 2d 9. But it is now clearly established that both the incompetency and the privilege may be waived. Lisko v. Hicks, supra; Harris v. Harris, 225 Ark. 958, 286 S. W. 2d 849; Smith v. Clark, 219 Ark. 751, 244 S. W. 2d 776. Failure to make timely objection constitutes waiver. Lisko, v. Hicks, supra; Brickey v. Sullivan, 208 Ark. 590, 187 S. W. 2d 1; Carlson v. Carlson, 224 Ark. 284, 273 S. W. 2d 542; Starbird v. Cheatham, 243 Ark. 181, 419 S. W. 2d 114.
Since the State proposed to call the wife, in this case, it seems obvious that she waived the privilege. Until a timely objection was made by appellant, he had not claimed any privilege or raised a question of competency of the witness. Here, as in the McDonald case, the trial judge promptly sustained the objection. While appellant made his objection in the form of a motion for mistrial, he did not request any admonition to the jury.
I agree that it would have been better to have taken the matter up out of the presence of the jury as suggested by the Supreme Court of South Dakota in holding that just such a procedure as was followed here did not constitute reversible error. State v. Damm, 62 S. D. 123, 252 N. W. 7 (1933). Certainly we should hesitate to call this action prejudicial error when eminent authority, 8 Wigmore, Evidence § 2243, p. 261 (McNaughton rev. 1961), states:
“. . . Furthermore, in any event, upon the same principle as under the privilege against self-incrimination (§ 2272 infra), the party desiring to compel the spouse to testify should be able at least to call for the testimony and should not be deprived of it until the party spouse formally objects and claims the privilege.”
Some courts have held this to be the proper procedure. See, e. g., People v. Wilkins, 135 Cal. App. 2d 371, 287 P. 2d 555.
While disagreement of the courts is acknowledged, it seems to me that the majority of courts to which the question has been presented have held that there is no prejudicial error. See People v. Chand, 116 Cal. App. 2d 242, 253 P. 2d 499 (1953); People v. Ward, 50 Cal. 2d 702, 328 P. 2d 777 (1958); State v. Roby, 128 Minn. 187, 150 N. W. 793 ,(1915); State v. Dennis, 177 Ore. 73, 159 P. 2d 838 (1945); Commonwealth v. Weber, 167 Pa. 153, 21 Atl. 481 (1895).