MR. JUSTICE FREEBOURN:
On December 15,1948, the county attorney of Kosebud county, by information filed in the district court, charged John Storm, defendant and appellant, with having “committed the crime of assault in the second degree, committed as follows: That on or about the 21st day of September 1948, at and within the County of Rosebud, State of Montana * * * John Storm * * * did * * * wilfully, wrongfully, unlawfully and feloniously commit an assault upon Floyd E. Dowlin, a human being, * * * with a deadly weapon likely to produce grievous bodily harm, to-wit: A loaded revolver * * * then and there held in his hand, and that the said defendant did then and there unlawfully, wilfully, wrongfully and feloniously point the same at the said Floyd E. Dowlin and threaten the said Floyd E. Dowlin with said revolver. ’ ’
Upon trial defendant was found guilty of second degree assault by the jury. Punishment being left to the court, defendant was sentenced to imprisonment in the state prison at hard labor for a term of two years.
The information charged defendant with assault in the second degree as defined in subdivision 4 of section 94-602, R. C. M. 3947. The parts of this section material here are:
“Assault in the second degree. Every person who, under circumstances not amounting to the offense specified in the last section: * * *
“4. Wilfully and wrongfully assaults another by the use of [104]*104a:weapon, or other instrument or thing likely to produce grievous bodily harm; or„
“5. Assaults another with intent to commit a felony, or to prevent or resist the execution of any lawful process or mandate of any court or officer, or the lawful apprehension or detention of himself, or of any other person, is guilty of an assault in the second degree, and is punishable by imprisonment in the state prison for not less than one nor more than five years, or by a fine not exceeding two thousand dollars, or both. ’ ’
The information charged Storm with unlawfully threatening Floyd E. Dowlin by pointing a loaded revolver at him. This charged a criminal offense.
As was said in State v. Kuum, 55 Mont. 436, 445, 178 Pac. 288,291:
“If one person presents a loaded firearm at another, with a purpose to do the other an injury or put him in fear, he is guilty of doing an unlawful act, for it amounts to an assault. State v. Barry, 45 Mont. 598, 124 Pac. 775, 41 L. R. A., N. S., 181; State v. Papp, 51 Mont. 405, 153 Pac. 279.
“But if the pointing of the weapon is accidental, or if there is no purpose or intention to injure the other by putting him in fear or otherwise, the act is not unlawful, in the sense that it is a crime punishable by law. ’ ’
Neither would a person be guilty of a crime if he pointed the weapon through mistake, nor would he be guilty of an offense if such pointing was for good cause or reason.
The prosecution introduced much evidence, over defendant’s objection, in attempting to prove that Storm in pointing the firearm, was resisting a lawful arrest by Dowlin as sheriff.
To make this kind of evidence admissible the information should have charged defendant under subdivisions 5 (not 4) of section 94-602, supra.
One witness giving this type of evidence was defendant’s wife. Not only was her testimony inadmissible for the reason above stated, but section 94-8802, R. C. M. 1947, specifically prohibited her testimony. This section reads: “Competency of husband [105]*105and wife as witnesses. Except with the consent of both, or in cases of criminal violence upon one by the other, or in case of abandonment, or neglect of children by either party, or of abandonment or neglect of the wife by the husband, neither husband nor wife is a competent witness for or against the other in a criminal action or proceeding to which One or both are parties. ’ ’
This statute continues what has long been the common law.
“At common law, and in the absence of constitutional or statu tory provision to the contrary, one spouse can not testify for or against the other in a criminal prosecution, except that one spouse may testify against the other as to an offense committed by the latter against the person of the former. ’ ’ Under-hill’s Criminal Evidence, 4th Ed., p. 668.
“Under the common law, which in the absence of statutory modification generally continues in full force, neither husband nor wife is a competent witness in a criminal prosecution against the other unless the crime charged is an offense against the person of the spouse testifying.” 58 Am. Jur., Witnesses, sec. 175, p. 125.
In Meade v. Commonwealth of Virginia, 186 Va. 775, 779, 43 S. E. (2d) 858, 860, 173 A. L. R. 372, a case wherein the husband was charged with forging the wife’s name to a deed of property owned by the wife, the Virginia court, in holding that such act was not an offense committed against the wife within a statute declaring a husband or wife competent to testify in a prosecution for a criminal offense committed by one against the other, in part, said:
“At common law, neither husband nor wife was a competent witness in a criminal action against the other, except where the crime was committed against the one testifying. The test was whether the offense amounted to personal violence or a physical assault upon the other. The exception was based upon the necessities of justice. Stein v. Bowman, 13 Pet. 209, 38 U. S. 209, 222, 10 L. Ed. 129, 135; Bassett v. United States, 137 U. S. 496, 11 [106]*106S. Ct. 165, 34 L. Ed 762; Davis v. Commonwealth, 99 Va. 838, 38 S. E. 191.
“ ‘This rule is founded upon the deepest and soundest principles of our nature, principles which have grown out of those domestic relations that constitute the basis of civil society, and which are essential to the enjoyment of that confidence which should subsist between those who are connected by the nearest and dearest relations of life. To break down or impair the great principles which protect the sanctities of husband and wife would be to destroy the best solace of human existence.’ Stein v. Bowman, supra.”
Since Storm was not charged with a crime of 'violence upon his wife, or abandonment or neglect of hef or of their children, the wife was not a competent witness against the defendant, her husband, and the admission of her testimony was prejudicial and reversible error.
Since the case must be reversed, we are impelled, after reading the transcript, to go a step further and determine if without the wife’s testimony there is sufficient evidence to establish defendant guilty beyond a reasonable doubt of the crime of second degree assault as defined in either subdivision 4 or 5 of section 94-602, supra.
The material facts, as shown by deputy sheriff Davidson’s direct and cross-examination are simple: On the late afternoon of September 21,1948, after receiving a telephone call from the Storm ranch, he told the county attorney “there had been a fight at the Storm ranch. ’ ’ He asked the county attorney for a warrant of arrest and was handed a blank justice court complaint. He then went by automobile with Sheriff Dowlin to the Storm ranch, arriving after darkness had fallen.
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MR. JUSTICE FREEBOURN:
On December 15,1948, the county attorney of Kosebud county, by information filed in the district court, charged John Storm, defendant and appellant, with having “committed the crime of assault in the second degree, committed as follows: That on or about the 21st day of September 1948, at and within the County of Rosebud, State of Montana * * * John Storm * * * did * * * wilfully, wrongfully, unlawfully and feloniously commit an assault upon Floyd E. Dowlin, a human being, * * * with a deadly weapon likely to produce grievous bodily harm, to-wit: A loaded revolver * * * then and there held in his hand, and that the said defendant did then and there unlawfully, wilfully, wrongfully and feloniously point the same at the said Floyd E. Dowlin and threaten the said Floyd E. Dowlin with said revolver. ’ ’
Upon trial defendant was found guilty of second degree assault by the jury. Punishment being left to the court, defendant was sentenced to imprisonment in the state prison at hard labor for a term of two years.
The information charged defendant with assault in the second degree as defined in subdivision 4 of section 94-602, R. C. M. 3947. The parts of this section material here are:
“Assault in the second degree. Every person who, under circumstances not amounting to the offense specified in the last section: * * *
“4. Wilfully and wrongfully assaults another by the use of [104]*104a:weapon, or other instrument or thing likely to produce grievous bodily harm; or„
“5. Assaults another with intent to commit a felony, or to prevent or resist the execution of any lawful process or mandate of any court or officer, or the lawful apprehension or detention of himself, or of any other person, is guilty of an assault in the second degree, and is punishable by imprisonment in the state prison for not less than one nor more than five years, or by a fine not exceeding two thousand dollars, or both. ’ ’
The information charged Storm with unlawfully threatening Floyd E. Dowlin by pointing a loaded revolver at him. This charged a criminal offense.
As was said in State v. Kuum, 55 Mont. 436, 445, 178 Pac. 288,291:
“If one person presents a loaded firearm at another, with a purpose to do the other an injury or put him in fear, he is guilty of doing an unlawful act, for it amounts to an assault. State v. Barry, 45 Mont. 598, 124 Pac. 775, 41 L. R. A., N. S., 181; State v. Papp, 51 Mont. 405, 153 Pac. 279.
“But if the pointing of the weapon is accidental, or if there is no purpose or intention to injure the other by putting him in fear or otherwise, the act is not unlawful, in the sense that it is a crime punishable by law. ’ ’
Neither would a person be guilty of a crime if he pointed the weapon through mistake, nor would he be guilty of an offense if such pointing was for good cause or reason.
The prosecution introduced much evidence, over defendant’s objection, in attempting to prove that Storm in pointing the firearm, was resisting a lawful arrest by Dowlin as sheriff.
To make this kind of evidence admissible the information should have charged defendant under subdivisions 5 (not 4) of section 94-602, supra.
One witness giving this type of evidence was defendant’s wife. Not only was her testimony inadmissible for the reason above stated, but section 94-8802, R. C. M. 1947, specifically prohibited her testimony. This section reads: “Competency of husband [105]*105and wife as witnesses. Except with the consent of both, or in cases of criminal violence upon one by the other, or in case of abandonment, or neglect of children by either party, or of abandonment or neglect of the wife by the husband, neither husband nor wife is a competent witness for or against the other in a criminal action or proceeding to which One or both are parties. ’ ’
This statute continues what has long been the common law.
“At common law, and in the absence of constitutional or statu tory provision to the contrary, one spouse can not testify for or against the other in a criminal prosecution, except that one spouse may testify against the other as to an offense committed by the latter against the person of the former. ’ ’ Under-hill’s Criminal Evidence, 4th Ed., p. 668.
“Under the common law, which in the absence of statutory modification generally continues in full force, neither husband nor wife is a competent witness in a criminal prosecution against the other unless the crime charged is an offense against the person of the spouse testifying.” 58 Am. Jur., Witnesses, sec. 175, p. 125.
In Meade v. Commonwealth of Virginia, 186 Va. 775, 779, 43 S. E. (2d) 858, 860, 173 A. L. R. 372, a case wherein the husband was charged with forging the wife’s name to a deed of property owned by the wife, the Virginia court, in holding that such act was not an offense committed against the wife within a statute declaring a husband or wife competent to testify in a prosecution for a criminal offense committed by one against the other, in part, said:
“At common law, neither husband nor wife was a competent witness in a criminal action against the other, except where the crime was committed against the one testifying. The test was whether the offense amounted to personal violence or a physical assault upon the other. The exception was based upon the necessities of justice. Stein v. Bowman, 13 Pet. 209, 38 U. S. 209, 222, 10 L. Ed. 129, 135; Bassett v. United States, 137 U. S. 496, 11 [106]*106S. Ct. 165, 34 L. Ed 762; Davis v. Commonwealth, 99 Va. 838, 38 S. E. 191.
“ ‘This rule is founded upon the deepest and soundest principles of our nature, principles which have grown out of those domestic relations that constitute the basis of civil society, and which are essential to the enjoyment of that confidence which should subsist between those who are connected by the nearest and dearest relations of life. To break down or impair the great principles which protect the sanctities of husband and wife would be to destroy the best solace of human existence.’ Stein v. Bowman, supra.”
Since Storm was not charged with a crime of 'violence upon his wife, or abandonment or neglect of hef or of their children, the wife was not a competent witness against the defendant, her husband, and the admission of her testimony was prejudicial and reversible error.
Since the case must be reversed, we are impelled, after reading the transcript, to go a step further and determine if without the wife’s testimony there is sufficient evidence to establish defendant guilty beyond a reasonable doubt of the crime of second degree assault as defined in either subdivision 4 or 5 of section 94-602, supra.
The material facts, as shown by deputy sheriff Davidson’s direct and cross-examination are simple: On the late afternoon of September 21,1948, after receiving a telephone call from the Storm ranch, he told the county attorney “there had been a fight at the Storm ranch. ’ ’ He asked the county attorney for a warrant of arrest and was handed a blank justice court complaint. He then went by automobile with Sheriff Dowlin to the Storm ranch, arriving after darkness had fallen. They entered the ranch house where Davidson handed the blank justice court complaint to Dowlin. In the house they saw defendant’s wife, Vivian Storm. ‘‘Q. Did she say anything at that time? A. No. ’ ’ When asked if Dowlin talked to Mrs. Storm' the answer was, “I believe not.” They also saw Dora Mae Chandler, [107]*107defendant’s sister, in the house. When asked if sheriff Dowlin talked to her ‘ ‘ about the things that happened that afternoon, ’ ’ the answer was “No.”
All that was done in the house was: “A. As I remember he handed her the paper and said, ‘ I’d like to have you sign this, ’ and I believe that’s all the conversation they had. ” “ She signed it,” and “I picked it up.” Neither Vivian Storm nor Dora Mae Chandler asked the sheriff or his deputy ‘ ‘ to arrest John Storm. ’ ’ The sheriff did not “before or at the time he left the house” tell his deputy “he would arrest John Storm.”
Leaving the ranch house, Dowlin and Davidson, the latter carrying the blank justice court complaint now signed by Dora Mae Chandler, walked in the darkness to the vicinity of a trailer house where Storm was. As they neared Storm, who appeared in the darkness to be “just an image is all I could see,” Davidson heard Storm say, “You better not come any further.’’ Davidson was not able to recognize Storm “until he walked down to where we were at.” At this time Storm was “leveling the gun at Dowlin.”
Dowlin said to Storm, “Johnny, we have a warrant of arrest for you,” and “Mr. Dowlin told me (Davidson), he says, ‘Give it to him,’ so I handed him this piece of paper.” Storm took the paper in his left hand and started for the burning lights of a car. As Davidson said: “He was not pointing the gun at anybody * * * after we started” for the car. “* * * we walked down there and just about the time we got to the car Johnny put the gun in here (indicating under his waist belt) and he took the paper in his right hand and opened it like this (indicating) and then he put his hand here like this (indicating on butt of gun in his waist belt) and held that in the light and he says, ‘Hell, that’s no good. I don’t have to go to town * * * Whereupon Dowlin struck Storm over the head with his sis shooter, “hit him on the side of the head and said, ‘ Stick your hands up ’. ” Storm at that time, “at the time he was hit,” had “the paper in his hands.” Storm was “handcuffed right there” and taken to jail.
[108]*108. Since Dowlin had no valid warrant for Storm and Storm had committed no offense in his presence (not considering the crime charged) the only authority under which Dowlin had a legal right to arrest Storm- must be found in section 94-6003, R. C. M. 1947. It follows:
“Arrests by peace officers. A peace officer may make an arrest in obedience to a warrant delivered to him, or may, without a warrant, arrest a person—
“1. For a public offense committed or attempted in his presence;
• “2. When a person arrested has committed a felony, although mot 'in his presence ;
' ■ “3; When a felony has in fact been committed, and he has "reasonable cause for believing the person arrested to have committed it;
: “4. On a charge "made, upon a reasonable cause, of the commission of a felony by the party arrested;
" “5. At night, when there is reasonable cause to believe that he has committed a felony. ’ ’
Sheriff Dowlin "had no legal right to arrest Storm under the evidence in this case unless he believed John Storm had committed a felony upon Vivian Storm, his wife.
That he did not arrest defendant for this reason or under such a belief is clear. The statements of Vivian Storm were not relied on for any official act.
Davidson, hearing' of the trouble between defendant and his wife by phone, felt a warrant was necessary. Neither the sheriff nor his deputy learned or tried to learn any facts from Vivian Storm or Dora Mae Chandler when that opportunity was presented at the ranch house. There nothing was done except to have Dora Mae Chandler, not defendant’s wife, sign a blank justice court complaint. Nothing was written into such complaint charging Storm with an offense against his wife. The sheriff made no statement to Ms deputy that he intended to arrest Storm. Dowlin did not tell Storm he was arresting him for an [109]*109offense upon Ms wife. Instead he said he had a warrant for Ms arrest which in fact he did not have.
On the following day the justice court complaint filed against defendant did not charge Mm with an offense against Ms wife. It charged a crime committed against the sheriff. The information upon which defendant was tried, filed in the district court in December 1948, did not charge defendant with an offense against Ms wife, but charged him with the offense of pointing a weapon at the sheriff.
In addition, the sheriff testified that he was not ready to arrest defendant before he entered the ranch house.
“Q. You thought it was necessary to go in and have some one sign this paper before you’d make the arrest? A. Yes, sir.
“Q. That’s the state of your mind and then all you did after that was to get Dora Mae Chandler to sign that paper before you went out to make the arrest? A. Yes, sir.”
He testified further: “Before he saw that paper he started to defy me in saying he wasn’t going.
“Q. Sheriff, at the time that you hit John Storm over the head, where was the gun, John Storm’s gun? A. It was in my left hand.
“Q. John Storm’s gun? A. Yes, sir.
‘ ‘ Q. And then after you disarmed him you hit him with your gun? A. He stood there defying me and said he wouldn’t go and I said, ‘ Get down in that ear. ’
‘ ‘ Q. And you hit him with a gun when he was unarmed ? A.' I did.
“Q. Was that necessary? Did he make any resistance to you at that time, sheriff? A. In words he was resisting me all the time.
“Q. What did John Storm say to you after you had the gun in your possession. John Storm’s gun in your possession? A. He still defied me and he said, ‘This isn’t worth a damn and I’m not going to town with you. ’
[110]*110“Q. And for that you hit him on the head with your gun? A. I did.”
Defendant, 31 years of age, with an honorable discharge Showing service in the United States Army during the last World War, rating of a sergeant, and medals for good conduct, also American and Asiatic-Pacific theater medals, contended that he had trouble that same day with two Texans. When the sheriff and his deputy came toward him in the darkness he believed they were the two Texans and took the gun from the trailer house for protection. He recognized the sheriff when about 12 feet away and put the gun in the waist of his pants when he was handed the supposed warrant.
The evidence is insufficient to warrant defendant’s conviction upon a charge of second degree assault either under subdivision 4 or 5 of section 94-602, supra.
We believe the jury was influenced in arriving at a verdict of guilty not only by the prejudicial and wholly inadmissible evidence of defendant’s wife, but by the fact as appears from the record that after defendant’s arrest in this case, his father was charged with a serious offense of violence and in connection with this defendant was arrested upon suspicion, imprisoned for 23 days and released without any charge being filed against him or warrant issued for his arrest.
For the reasons stated the judgment is reversed with directions to dismiss the information.
MR. CHIEF JUSTICE ADAIR and ASSOCIATE JUSTICES METCALF and BOTTOMLY concur.