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546.260. Defendant may testify in own behalf--spouse may testify for husband or wife--spouse may testify against husband or wife, when.

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Defendant may testify in own behalf--spouse may testify for husbandor wife--spouse may testify against husband or wife, when. 546.260.1.No person shall be incompetent to testify as awitness in any criminal cause or prosecution by reason of beingthe person on trial or examination, or by reason of being thehusband or wife of the accused, but any such facts may be shownfor the purpose of affecting the credibility of such witness;provided, that no person on trial or examination, nor wife orhusband of such person, shall be required to testify, but anysuch person may testify at his or her option either on behalf ofor against the defendant, and shall be liable tocross-examination, as to any matter referred to in hisexamination in chief, and may be contradicted and impeached asany other witness in the case; provided, that in no case shallhusband or wife, when testifying under the provisions of thissection, be permitted to disclose confidential communications hador made between them in the relation of such husband and wife. 2.Notwithstanding subsection 1 of this section or any otherprovision of law to the contrary, in any criminal prosecutionunder chapter 565, 566 or 568, RSMo, involving an alleged victimunder the age of eighteen, a spouse shall be a competent witnessagainst a defendant spouse, and no spousal privilege as set forthin subsection 1 of this section or any other provision of lawshall exist.(RSMo 1939 § 4081, A.L. 1985 H.B. 366, et al.)Prior revisions: 1929 § 3692; 1919 § 4036; 1909 § 5242Effective 7-19-85(1952) The "matter referred to in his examination in chief"means the things he testifies about. If defendant in chief in ageneral way refers to a subject, he may be examined in detailas to that subject. State v. Christian (Mo.), 245 S.W.2d 895.(1952) Where defendant ex-policeman testified as to his workas policeman and his training, cross-examination as towhether he got in trouble during training was improper butgeneral objection not sufficient to preserve objection. Specificobjection on ground no conviction shown made at close ofcross-examination also not sufficient to preserve same. State v.Slaten (Mo.), 252 S.W.2d 330.(1953) Where defendants on direct examination denied stealingcorn, they could be cross-examined as to their signaturesto conflicting statements as to crime made in prosecuting attorney'soffice, even though statements were not introducedand particularly is this so where stenographer testified withoutobjection from her notes as to matters contained in such statements.State v. Kaufman (Mo.), 254 S.W.2d 640.(1953) Where defendant in criminal case offered himself aswitness and, on cross-examination for purpose of impeachment,gave false answers as to his prior convictions of crime,he was guilty of perjury. State v. Swisher, 364 Mo. 157, 260S.W.2d 6.(1956) Where officer was called by defense in robbery prosecutionto impeach state's witnesses, his cross-examination, forthe purpose of showing defendant had been arrested on anothercharge, held error. State v. Ingram (Mo.), 286 S.W.2d733.(1957) Wife, testifying voluntarily, held competent witnessagainst her husband in prosecution for acts constituting crimeof personal violence against her child. State v. Kollenborn(Mo.), 304 S.W.2d 855.(1958) In prosecution upon charge of performing an abortionwhere defendant's testimony on direct examination was in effecta general denial, cross-examination of defendant in regardto the right of access to and control of the house inwhich state's evidence tended to show the abortion took placewas proper. State v. Scown (Mo.), 312 S.W.2d 782.(1958) Under common law court did not err in permittingwife to testify on behalf of state in prosecution of defendantfor statutory rape of his eight-year-old daughter as to whatshe found when she returned home and found defendant andthe child. State v. Greer (Mo.), 313 S.W.2d 711.(1959) Where defendant in criminal case took stand, cross-examinationof him with respect to his former convictions wasa proper method of impeachment. State v. Reece (Mo.), 324S.W.2d 656.(1959) Where husband on trial for murder testified to an allegedconfidential communication between him and his wifeand by such testimony attempted to blacken her reputationfor his own advantage, he was held to have waived her incompetencyand her testimony as to the communication and as tothe commission of the crime was properly admitted in rebuttal.State v. Bledsoe (Mo.), 325 S.W.2d 762.(1959) Where defendant took stand as witness, his cross-examinationas to prior convictions, including misdemeanor convictions,held proper. State v. Ivory (Mo.), 327 S.W.2d870.(1960) Where defendant makes sweeping denial of commissionof crime in testimony on his own behalf, he is liable tocross-examination, contradiction and impeachment as anyother witness. State v. Beishir (Mo.), 332 S.W.2d 898.(1960) Spouse of individual charged with crime is not precludedfrom testifying against coindictee of spouse wheresuch coindictee is separately tried. State v. Gyngard (Mo.),333 S.W.2d 73.(1960) Where defendant in criminal case takes stand as witnessin his own behalf he may be cross-examined as any otherwitness with respect to former convictions upon the issue ofhis credibility as a witness. State v. Morton (Mo.), 338S.W.2d 858.(1961) After asking a series of prejudicial and improper questionsof defendant which related to matters beyond scope ofdirect examination objections to which were sustained by thecourt, comment by prosecuting attorney that "if the courtplease, we have got the right to put on some testimony fromthis witness" prejudiced the rights of defendant and was notrelieved by direction of court to disregard the statement. Statev. Sarten (Mo.), 344 S.W.2d 1.(1962) Where defendant, in prosecution for subornation ofperjury, testified as to his truthfulness it was proper for stateto cross-examine defendant regarding prior jail sentence andfine for contempt of court for false swearing. State v. Baldwin(Mo.), 358 S.W.2d 18.(1962) Admission in evidence of photograph of defendanttaken after arrest showing defendant's hair to be long whereat time of trial he had a crew cut and identity of defendantwas disputed, upheld against contention it compelled defendantto testify against himself. State v. Sanders (Mo.), 358S.W.2d 45.(1962) Defendant in robbery prosecution, by taking the standand testifying in his own defense, waived the error, if any, inrequiring him to be sworn before exhibiting himself beforejury in hat, sweater, gloves and stocking mask worn by robber.State v. Byrd (Mo.), 360 S.W.2d 614.(1963) In prosecution for carrying a concealed weapon it wasprejudicial error to admit testimony in rebuttal that defendanthad remained silent when asked by officer at time of arrestwhy he was carrying the pistol. State v. Vainikos (Mo.),366S.W.2d 423.(1966) Credibility of defendant who elects to take stand in hisown behalf may be attacked like that of any other witness byshowing prior convictions. State v. McClain (Mo.), 404S.W.2d 186.(1970) The right of an accused to testify in his own behalf isa statutory and not a constitutional right. State v. Hutchinson(Mo.), 458 S.W.2d 553.(1974) Cross-examination as to whether defendant changedcoats with a codefendant before a police lineup was propersince on direct examination the denial of guilt by the defendantwas broad enough to allow evidence of consciousness ofguilt or a disposition to conceal the alleged crime as indicatedby the changing of coats. State v. Kirk (A.), 510 S.W.2d 196.(1976) When defendant testified that he did not shoot victimbut that third person did, evidence that defendant attemptedto suborn perjury in support of his testimony constitutes directcontradiction of his examination in chief and is admissible toimpeach him. State v. Moore (A.), 546 S.W.2d 10.(1977) Held, a person may testify against his spouse, the privilegebelongs to the witness and must be asserted by the witness.State v. Frazier (A.), 550 S.W.2d 590.(1977) Where defendant testified on direct examination thathe had never been "in trouble" except for one instance,cross-examination as to prior arrests was permissible. State v. Payton(A.), 559 S.W.2d 551.(1986) The husband-wife privilege does not apply to communicationsrelating to contemplated future crimes. State v.Heistand (Mo.banc), 708 S.W.2d 125.(1987) Person on trial for selling marijuana who testified inhis own behalf was subject to cross examination on subjectof identity of supplier pursuant to this section in view ofdefendant's numerous references to supplier and defendant'simplication that defendant was motivated to sell marijuanato pay a cocaine debt owed to supplier. State v. McClintic,731 S.W.2d 853 (Mo.App.S.D.).
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  • Defendant may testify in own behalf--spouse may testify for husbandor wife--spouse may testify against husband or wife, when.

    546.260. 1. No person shall be incompetent to testify as awitness in any criminal cause or prosecution by reason of beingthe person on trial or examination, or by reason of being thehusband or wife of the accused, but any such facts may be shownfor the purpose of affecting the credibility of such witness;provided, that no person on trial or examination, nor wife orhusband of such person, shall be required to testify, but anysuch person may testify at his or her option either on behalf ofor against the defendant, and shall be liable tocross-examination, as to any matter referred to in hisexamination in chief, and may be contradicted and impeached asany other witness in the case; provided, that in no case shallhusband or wife, when testifying under the provisions of thissection, be permitted to disclose confidential communications hador made between them in the relation of such husband and wife.

    2. Notwithstanding subsection 1 of this section or any otherprovision of law to the contrary, in any criminal prosecutionunder chapter 565, 566 or 568, RSMo, involving an alleged victimunder the age of eighteen, a spouse shall be a competent witnessagainst a defendant spouse, and no spousal privilege as set forthin subsection 1 of this section or any other provision of lawshall exist.

    (RSMo 1939 § 4081, A.L. 1985 H.B. 366, et al.)

    Prior revisions: 1929 § 3692; 1919 § 4036; 1909 § 5242

    Effective 7-19-85

    (1952) The "matter referred to in his examination in chief" means the things he testifies about. If defendant in chief in a general way refers to a subject, he may be examined in detail as to that subject. State v. Christian (Mo.), 245 S.W.2d 895.

    (1952) Where defendant ex-policeman testified as to his work as policeman and his training, cross-examination as to whether he got in trouble during training was improper but general objection not sufficient to preserve objection. Specific objection on ground no conviction shown made at close of cross-examination also not sufficient to preserve same. State v. Slaten (Mo.), 252 S.W.2d 330.

    (1953) Where defendants on direct examination denied stealing corn, they could be cross-examined as to their signatures to conflicting statements as to crime made in prosecuting attorney's office, even though statements were not introduced and particularly is this so where stenographer testified without objection from her notes as to matters contained in such statements. State v. Kaufman (Mo.), 254 S.W.2d 640.

    (1953) Where defendant in criminal case offered himself as witness and, on cross-examination for purpose of impeachment, gave false answers as to his prior convictions of crime, he was guilty of perjury. State v. Swisher, 364 Mo. 157, 260 S.W.2d 6.

    (1956) Where officer was called by defense in robbery prosecution to impeach state's witnesses, his cross-examination, for the purpose of showing defendant had been arrested on another charge, held error. State v. Ingram (Mo.), 286 S.W.2d 733.

    (1957) Wife, testifying voluntarily, held competent witness against her husband in prosecution for acts constituting crime of personal violence against her child. State v. Kollenborn (Mo.), 304 S.W.2d 855.

    (1958) In prosecution upon charge of performing an abortion where defendant's testimony on direct examination was in effect a general denial, cross-examination of defendant in regard to the right of access to and control of the house in which state's evidence tended to show the abortion took place was proper. State v. Scown (Mo.), 312 S.W.2d 782.

    (1958) Under common law court did not err in permitting wife to testify on behalf of state in prosecution of defendant for statutory rape of his eight-year-old daughter as to what she found when she returned home and found defendant and the child. State v. Greer (Mo.), 313 S.W.2d 711.

    (1959) Where defendant in criminal case took stand, cross-examination of him with respect to his former convictions was a proper method of impeachment. State v. Reece (Mo.), 324 S.W.2d 656.

    (1959) Where husband on trial for murder testified to an alleged confidential communication between him and his wife and by such testimony attempted to blacken her reputation for his own advantage, he was held to have waived her incompetency and her testimony as to the communication and as to the commission of the crime was properly admitted in rebuttal. State v. Bledsoe (Mo.), 325 S.W.2d 762.

    (1959) Where defendant took stand as witness, his cross-examination as to prior convictions, including misdemeanor convictions, held proper. State v. Ivory (Mo.), 327 S.W.2d 870.

    (1960) Where defendant makes sweeping denial of commission of crime in testimony on his own behalf, he is liable to cross-examination, contradiction and impeachment as any other witness. State v. Beishir (Mo.), 332 S.W.2d 898.

    (1960) Spouse of individual charged with crime is not precluded from testifying against coindictee of spouse where such coindictee is separately tried. State v. Gyngard (Mo.), 333 S.W.2d 73.

    (1960) Where defendant in criminal case takes stand as witness in his own behalf he may be cross-examined as any other witness with respect to former convictions upon the issue of his credibility as a witness. State v. Morton (Mo.), 338 S.W.2d 858.

    (1961) After asking a series of prejudicial and improper questions of defendant which related to matters beyond scope of direct examination objections to which were sustained by the court, comment by prosecuting attorney that "if the court please, we have got the right to put on some testimony from this witness" prejudiced the rights of defendant and was not relieved by direction of court to disregard the statement. State v. Sarten (Mo.), 344 S.W.2d 1.

    (1962) Where defendant, in prosecution for subornation of perjury, testified as to his truthfulness it was proper for state to cross-examine defendant regarding prior jail sentence and fine for contempt of court for false swearing. State v. Baldwin (Mo.), 358 S.W.2d 18.

    (1962) Admission in evidence of photograph of defendant taken after arrest showing defendant's hair to be long where at time of trial he had a crew cut and identity of defendant was disputed, upheld against contention it compelled defendant to testify against himself. State v. Sanders (Mo.), 358 S.W.2d 45.

    (1962) Defendant in robbery prosecution, by taking the stand and testifying in his own defense, waived the error, if any, in requiring him to be sworn before exhibiting himself before jury in hat, sweater, gloves and stocking mask worn by robber. State v. Byrd (Mo.), 360 S.W.2d 614.

    (1963) In prosecution for carrying a concealed weapon it was prejudicial error to admit testimony in rebuttal that defendant had remained silent when asked by officer at time of arrest why he was carrying the pistol. State v. Vainikos (Mo.),366 S.W.2d 423.

    (1966) Credibility of defendant who elects to take stand in his own behalf may be attacked like that of any other witness by showing prior convictions. State v. McClain (Mo.), 404 S.W.2d 186.

    (1970) The right of an accused to testify in his own behalf is a statutory and not a constitutional right. State v. Hutchinson (Mo.), 458 S.W.2d 553.

    (1974) Cross-examination as to whether defendant changed coats with a codefendant before a police lineup was proper since on direct examination the denial of guilt by the defendant was broad enough to allow evidence of consciousness of guilt or a disposition to conceal the alleged crime as indicated by the changing of coats. State v. Kirk (A.), 510 S.W.2d 196.

    (1976) When defendant testified that he did not shoot victim but that third person did, evidence that defendant attempted to suborn perjury in support of his testimony constitutes direct contradiction of his examination in chief and is admissible to impeach him. State v. Moore (A.), 546 S.W.2d 10.

    (1977) Held, a person may testify against his spouse, the privilege belongs to the witness and must be asserted by the witness. State v. Frazier (A.), 550 S.W.2d 590.

    (1977) Where defendant testified on direct examination that he had never been "in trouble" except for one instance, cross-examination as to prior arrests was permissible. State v. Payton (A.), 559 S.W.2d 551.

    (1986) The husband-wife privilege does not apply to communications relating to contemplated future crimes. State v. Heistand (Mo.banc), 708 S.W.2d 125.

    (1987) Person on trial for selling marijuana who testified in his own behalf was subject to cross examination on subject of identity of supplier pursuant to this section in view of defendant's numerous references to supplier and defendant's implication that defendant was motivated to sell marijuana to pay a cocaine debt owed to supplier. State v. McClintic, 731 S.W.2d 853 (Mo.App.S.D.).

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