dissenting.
The instant case involves an incident where the appellant violently assaulted both his wife and her adult daughter during the same course of conduct. The appellant beat both of the women before he attacked them with his gun, pistol-whipping his wife and shooting her daughter. Both the wife, who voluntarily testified against the appellant, and her daughter were direct victims of the appellant’s violent and as-saultive conduct.
In this fact situation, Art. 38.11 permitted the appellant’s wife to testify against him concerning his violent, assaultive acts against her and the deceased. Ruling otherwise, the majority cites a line of cases from this Court which have interpreted Art. 38.11 differently, including Young v. State, supra, where this Court ruled that a spouse, in order to testify, must be named in the indictment or information as the victim of the other spouse’s violent or as-saultive acts. The history of Art. 38.11 suggests this has been, and is, an incorrect interpretation.
When the Legislature revised the husband-wife privilege in 1965, it dropped the language1 which mandated that the witness spouse be alleged as the victim in an indictment or information. In the 1965 version of the statute, the Legislature replaced this language with a new, and broader, exception to the privilege against adverse spousal testimony. Art. 38.11, V.A.C.C.P., now states that “a wife or husband may voluntarily testify against each other in any case for an offense involving any grade of assault or violence committed by one against the other.”
The majority explains that various commentaries about the 1965 changes in the Code do not mention an alteration in the husband-wife privilege, and that the courts of this State have interpreted the new statute to have the same meaning as the old statute. If this had been the actual intent of the Legislature, they wouldn’t have changed the language of the statute. Instead, the Legislature’s decision to broaden the statutory exception to the husband-wife privilege reflects a dissatisfaction with the privilege and a desire to limit its application.
Since 1958, there has been a constant erosion of the scope of this privilege against adverse spousal testimony. Several state legislatures have accomplished this by statutory changes. Trammel v. United States, 445 U.S. 40, 100 S.Ct. 906, 63 L.Ed.2d 186 (1980), 100 S.Ct. at 911, footnote 9. Some authorities have called for elimination of the privilege against adverse spousal testimony where the testimony does not relate to confidential communications. Committee for Improvements in the Laws of Evidence of the American Bar Association, 63 American Bar Association *602Reports 594-595 (1938) and American Law Institute, Model Code of Evidence, Rule 215 (1942). Professor Wigmore suggested that a spouse’s extensive privilege to exclude his or her spouse’s adverse testimony should be replaced by a privilege protecting only private marital communications. 8 J. Wigmore, Evidence sec. 2227 (McNaughton r¿4 1961). In this context, it is reasonable to interpret the Legislature’s 1965 statutory changes as a decision to permit the admission of a spouse’s adverse testimony in ány case where the evidence indicates that the testifying spouse suffered any grade of assault or violence by the defendant spouse, even in a case where the testifying spouse was not named as a victim in the indictment or information.
Young v. State, and its predecessors, represent an occasion where this Court adhered to a doctrinal concept long after the reason supporting it disappeared. It has been written about the privilege against adverse spousal testimony that
“The ancient foundations for so sweeping a privilege have long since disappeared. Nowhere in the common-law world — indeed in any modern society — is a woman regarded as chattel or de- - meaned by denial of a separate legal identity and the dignity associated with recognition as a whole human being.
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“The contemporary justification for affording an accused such a privilege is also unpersuasive. When one spouse is willing to testify against the other in a criminal proceeding — whatever the motivation — their relationship is almost certainly in disrepair; there is probably little in the way of marital harmony for the privilege to preserve. In those circumstances, a rule of evidence that permits an accused to prevent adverse spousal testimony seems far more likely to frustrate justice than to fester family peace.” Trammel, 100 S.Ct. supra, at 913.
I would hold that the trial court properly permitted the appellant’s spouse to testify against him concerning his violent and as-saultive conduct towards her daughter and herself.2 This was authorized by the exception to the husband-wife privilege set out in Art. 38.11. I would overrule Young v. State and its predecessors. I respectfully dissent.
W.C. DAVIS and McCORMICK, JJ., join this dissent.. Article 714, V.A.C.C.P. (1925) set out, in part, that a husband and wife "shall in no case testify against each other except in a criminal prosecution for an offense committed by one against the other."
. I agree with the majority that this Court’s recent promulgation of Rule 504 of the new Texas Rules of Criminal Evidence is no justification for affirming the trial court’s actions, and should not be used before its effective date for that purpose. The 1965 changes in the statutory privilege justify an affirmance of appellant’s conviction. On the other hand, the fact that Rule 504 permits appellant to be retried for this offense with the use of his wife’s testimony is no justification for adhering to a dated, and improper, interpretation of Art. 38.11.