(concurring and dissenting) :
While in accord with much of the majority opinion of the Court, I find myself in disagreement as to certain points. I seriously question the Court’s construction of code sections 1-65, 26-7.1, and 26-7.2. The plain language of section 26-7.2 says that unless the other sections have been complied with no such statement shall be admissible in any case or any reference be made to it in the trial of any case. Nevertheless, assuming that such a statement is otherwise competent and admissible, I cannot conceive of the legislature having intended to deprive an individual of the benefit of such evidence because of the failure of the State to comply with the law. Such would, I think, be completely illogical and outside the obvious purpose of the statutory scheme.
While no constitutional issue has been made or argued in this connection in the instant case, it seems to me that the case of Chambers v. Mississippi, 410 U. S. 284, 93 S. Ct. 1038, 35 L. Ed. (2d) 297 (1973), would clearly preclude, on constitutional grounds, the construction of our statute to preclude the use of such a statement by a defendant, assuming such to be otherwise admissible. On this point I disagree only as to the construction of the statute, as I am not convinced that the record reflects, or properly preserves for review here, any resulting prejudice to the defendant from the erroneous ruling below.
Of much greater concern is the Court’s construction of code section 26-403. That section as codified since 1952 is a combination of portions of the following acts: 1866 (13) 378, 1870(14) sec. 415. The presently pertinent portion of *328the said section, to wit: “But no husband or wife shall be required to disclose ... in a criminal proceeding any communication made by one to the other during their marriage,” had its origin in the 1866 act. That act in pertinent part provided that a defendant in a criminal case should be allowed to testify, if he desired to do so, regarding the facts of the case, but went on to provide “That no person shall be required to answer any question tending to criminate himself; nor shall husband or wife be required to disclose any communication made to each other during their coverture, . . .” It should be remembered that in 1866 husband and wife, in the eyes of the law, still constituted a single entity and under such circumstance allowing one spouse to disclose an incriminating communication without the consent of the other was tantamount to requiring self-incrimination by the nonconsenting spouse.
The case of Mosely v. Eakin, 15 Rich. 324, was decided in 1868 just two years after the enactment of the statutory language here involved and apropos of the pertinent statutory language, the court had the following to say: “It was an axiom of the law that no one should be required to give testimony that would criminate himself. By the former of these exceptions the Legislature declare that this protection should be preserved. So, upon well settled principles of public policy, as well as because of the identity of their legal rights and interests, confidential communications between husband and wife belong to the class of privileged communications, and are protected.” See, to the same effect, the cases of State v. Workman, 15 S. C. 540; State v. Dodson, 16 S. C. 453.
The 1870 act dealt in several respects with the competency and compellability of witnesses and contained, inter alia, the following provision: “No husband or wife shall be compellable to disclose any confidential communication made by one to the other during their marriage.”, this provision being the genesis of a portion of the language contained in present code section 26-403. The 1870 act, section 415, contained a *329provision to the effect that nothing contained therein should render one spouse competent or compellable to give evidence for or against the other in any criminal case, with certain exceptions not now pertinent. In the codification of the General Statutes in 1882, section 400 of the Code of Civil Procedure, the provision just mentioned was deleted from former section 415 of the 1870 act.
Following such deletion it was held in State v. Reynolds, 48 S. C. 384, 26 S. E. 679 (1897), that a wife was competent to testify against her husband in a criminal case. The court discussed the history and provisions of the 1870 act but made no mention of the 1866 act with which we are here concerned. The report of this case in the South Carolina Reporter indicates that the 1866 act was not even cited to the court. The court nevertheless, in holding the wife competent to testify, was careful to point out that her testimony had no reference to any confidential communication made to her by her husband and she was not compelled to testify. The second syllabus of this case in the Southeastern Reporter construes the holding of the court to be that “a wife may testify against her husband in criminal cases except as to confidential communications made during marriage.” The annotators of the code have long cited State v. Reynolds for the identical proposition reflected in the syllabus just quoted.
The pertinent provision of the 1866 act, with which we are here immediately concerned was twice stated in the 1882 codification of the General Statutes, in sections 2232 and 2644, and in both instances made applicable only to criminal cases. From then until 1952 when it was jumbled into what is now section 26-403, it was brought forward separately in the successive codes as a part of the criminal statutes. See, for instance, section 64 of the 1893 Revised Statutes, Criminal Code. The marginal title thereto was as follows: “Persons not required to incriminate themselves, etc.: privileges of husband and wife.”
The history of the acts, the contemporary construction of the same by the courts, and the construction accorded by the *330digesters and code annotators, all lead me to the conclusion that it was the intent of the legislature to preserve the privilege of communications between husband and wife, which privilege was preserved primarily for the benefit of the communicating spouse, but also for either spouse who chose to claim it and not merely for a spouse who perchance chose to be or not to be a witness thereabout.
2 Wigmore on Evidence, section 600 et seq. and 8 Wig-more, section 2227 et seq., cited in the opinion of Mr. Justice Lewis, deal with the common law disqualification of husband and wife to testify against each other, exceptions thereto and the statutory modification or abolition of the rule. The status of the law as to privileged communications between husband and wife, with which we are here concerned is dealt with in 8 Wigmore, commencing with section 2332. In section 2333 he discusses the distinction between the privilege against adverse testimony and the privilege for communications between husband and wife and in section 2334 the distinction between the privilege of either spouse against the other’s disclosure of communications and the marital disqualification of one spouse to testify on the other’s behalf, pointing out that judicial confusion of them was nevertheless quite frequent and the fact that the occasional legislative commingling of them in the same sentence of the same enactment had given rise to much of the confusion.
In section 2340 Professor Wigmore states that “The privilege is intended to secure freedom from apprehension in the mind of the one desiring to communicate (section 2332, supra) ; it thus belongs to the communicating one.”
In McCormick on Evidence, section 83, apropos of who is the holder of the privilege under discussion, we find the following: “Who is the holder? Wigmore’s argument, that the policy of encouraging freedom of communication points to the communicating spouse as holder, seems convincing. Under this view, in the case of a unilateral oral message or statement, of a husband to his wife, only the husband could *331assert the privilege, where the sole purpose is to show the expressions and attitude of the husband.”
In Judge Whaley’s Handbook on South Carolina Evidence, S.C.L.Q., Volume 9, No. 4A (1957) page 31, the author refers to communications between husband and wife being an old common law privilege and hence still existing in South Carolina. He further stated that while we had no cases involving who was the holder of the privilege, one had no doubt that the courts would follow the great majority in holding that any waiver of the privilege “must be by both spouses since it is the privilege of both.” Professor Dreher in his Guide to Evidence Law in South Carolina, page 26, construes code section 26-403 as preserving the common law privilege against the disclosure of confidential communications made by one spouse to the other during their marriage. He goes on to state that “The party who made the statement owns the privilege unless there is a purpose to show agreement by silence, in which case the other spouse owns it. If there was a general agreement between them on some matter both spouses own the privilege as to that.”
In the instant case we are not at all concerned with whether or not the wife, who was allowed to testify against her husband could, or could not, have claimed the privilege. It is sufficient to point out, for the purpose of this case, that both Wigmore and McCormick, as well as the only two distinguished South Carolinians who have written texts on the subject, all agree that the husband here was the holder of the common law privilege preserved by the code section. The conclusion which they reach, as far as I am able to ascertain is supported by virtually the entire weight of case law throughout the United States. Research has not disclosed to the writer any case, under a statute at all similar to ours, holding that the privilege is that of only the witness spouse and that the communicating spouse is not the holder thereof. In the fairly recent North Carolina case of Hicks v. Hicks, 271 N. C. 204, 155 S. E. (2d) 799 (1967), the court *332construed its statute, which is substantially in accord with ours, to hold that the communicating spouse was the holder of the privilege. A New York statute appears to be quite similar to our statute and it is there held that the communicating spouse is the holder of the privilege. People v. Wood, 126 N. Y. 249, 27 N. E. 362; People v. Melski, 10 N. Y. (2d) 78, 217 N. Y. S. (2d) 65, 176 N. E. (2d) 81 (1961). See also Martin v. Mississippi, 203 Miss. 187, 33 So. (2d) 825, 2 A. L. R. (2d) 640; Dalton v. People, 68 Colo. 44, 189 P. 37; Hunter v. Hunter, 169 Pa. Super. 498, 83 A. (2d) 401. Under what I deem to be the proper construction of our statute and the clear weight of authority, it is my view that the husband was the holder of the privilege and that the lower court erred in admitting, over the objection of the defendant, communications by the husband to his wife.
The judgment below should be reversed and the case remanded for a new trial.