OCR Text |
Show AN IMPORTANT DECISIOM; Ruling of lis UUu Cnrts Rfliersid. roll Text or ths Cplaloa or Ike U. S. Snpreme Court. SOrBEME COUBT OF TI1E CMITED STATES. No. 110. October Term, 1S93. William E. Bawett, Plaintiff in Error, vs. the United Stales. In error to the Supreme Court of the Territory or Utah. December 22,1893 Mr. JuUlu Brewer delivered the opinion or the Court. On November 23. 18S3, the grand Jury or the First Judltlil District Court of Utah fouudnu indictment for lyganiy against the plaluUIT in error, chanting him with having married one K ite Smith on the 1 4th day of August, 1S3 1, when his lawful law-ful wire, Sarah Anu Williams, was still HvlDg and undlvorced. Upon trial before a j u ry a verdict or guilty was returned, and be was sentenced to Imprisonment for a term of five years and to pay a fine of five hundred dollar. Such sentence, on appeal, was affirmed by the Supreme Court of the Territory, and is now brought to this court for review. A preliminary question is presented pre-sented by the Attorney-General. It surged that there was no proper till of exceptions as to the proceedings proceed-ings in the trial court, and therefore nothing is presented which tills court can review. But we are re-vfawlncr re-vfawlncr Him iadcfment or the SupremeCourtoftbeTerrliory; and the rule In this court is not to consider con-sider questions other than those or jurisdiction, which were not presented pre-sented to tho court whose ju Igmcnt we are asked to examine. (Clark v. Fredericks, 105 U. S. 1 ) Beyond the fact that the proceeding of the trial court were examined and considered con-sidered by tho Supreme Court of the Territory, and are, therefore, presumably pre-sumably reviewable by this court. Is this matter, noticed in this court in the case or Hopt v. Utah, (lit U. S. 4SS ) that a large liberty or review re-view U given by the statutes or Utah to the Supreme Court or the Territory, even in the absence vt a formal bill or exception. (See also Stringfellow v. Cain. 03 U. S. 610; O'lWJy v. Campbell, 11Q U. 8. 418.) Uutlt is unnecessary to restupon this recognition by the Supreme Court orthe Territory, or tho presumptions pre-sumptions aricing therefrom. The record shows the pleadings, pro-wling. pro-wling. and exceptions tn l charge or the trial judge, all certified piopcriy iy T. A. l'erkius, tho clerk of tue trial court. At the clow or his certificate, which is or date or January 31, 1S57, Is this statement: "And I further certify that a copy of defendant's bill of executions iu said cause is not made part hereof because said bill of exceptions is in the possession of defendant's couu-sel, couu-sel, at the City of Salt Lake, and because be-cause I am Informed by esaid counsel that It has been stipulated by and between tbemsel vus and the United States district attorney for Utah Territory that the original thereof In place of such copy should be used In the Supreme Court upon this appeal." The bill or exceptions referred toby him in this statement is signed by the trial fudge and thus endorsed. "No. JHI. First DIst. Court. Utah. The United JSlfites vs. WinGm"EBaKfctt Polygamy. Bill or exceptions. Filed January 19, 1S37. T. A. Perkins, clerk;" and also by the tier' or the Supremo Court or the Territory aa "Filed February 2, 1SS7," the date or filing or the transcript of the proceedings of the trial court. The Import of all this Is that the bill of exceptions signed oy the triil judge was filed in the trial court; and that, for the purposes pur-poses of economy, time and convenience, con-venience, such original bill, together with the record of the proc.-ed-ings. was brought to and filed in theSjpremeCeurt after having been filed in the trial court. It needs but this 8U7gcstlon,that if a copy Is gco J the original is equally goo I The identification of such bill ofexcep-tIoi.a ofexcep-tIoi.a is lierfect, vouched by the signatures or tho trial judge, the clerk or the District Court, and the chrk of the Supreme Court. To ignore ig-nore such authentication would pi see this court in the attitudo of resting on a mere technicality to aruidan Inquiry Into the substantial substan-tial rights of a party, as considered 'nd determined by both the trial ;ourt and the Supreme Court or the Territory. In the absence or a fctatute or special rulo of lawcom-leUing lawcom-leUing such a practice, we decline to adopt it. I'asslogrrom tblsquestlonof practice prac-tice to the merits, the principal question, aud the ouly one we deem necessary to consider, is this: Tbe wife of tbe defendant was called as a witness for tbe prosecution, and permitted to testify as to confessions made by bim to her iu respect to tbe crime charged, and ber testimony was the only direct evidence against blm. This testimony was admitted under the first piragrattli of section 1156 or the Code or Civil Procedure, enacted In 1SSJ, so-tlon 3S78 or the Compiled laws or Utah, ISSS, which reads: "A husbind cannot be examined ex-amined for or aalnst his wife, without her coasent, nor a wife f r or against her busbaod,witbout his convent; nor can either, during the marriage, or afterwards, be, without tbe consent of the other, examined as to any comi-.unlcation made by one totheotherdurlng the marriage; but this exception doce not apply tu a civil action or proceeding by one against the other, nor to a criminal aCtion or proceeding for a crime committed by one against the uther." And tho contention Is, that polygamy la within the Ian guage of that paragraph a crime committed by the husband against the wife. We think this rullue crron-ous. A technical argument against it U this: The Section Is found In the Code of Civil Procedure, Proced-ure, and Its provisions should not be held to determine the competency or witnesses in criminal cases, especially when there Is a Code or Criminal Procedure which contains con-tains sections prescribing the conditions con-ditions or competency. Section 421 or the Code or Criminal Procedure, section 5197 or tbe Compiled Laws, 18S8, Is at follows: ".Except with the consent or both, or In eases or criminal vio'ence upon one by the other, neither husband nor wire are competent witnesses for or against each ether. In a criminal action or proceeding to which one or both are parties." Clearly under that section tbe wife is net a competent witness. It Is true that the Code of Criminal Procedure was enacted in 1878, and the Code or Civil Procedure iu 1884, to that the latter Is the last expression expres-sion orthe legislative will; but a not unreasonable construction is, that the last clause or this paragraph waa inserted simply to prevent the rule sUtedlntbefirUcJaueefrom beisg held to apply to tbe eatea stated is the hat, leaving the rule coatrolllag la criminal cases to be determicau by the already enacted section in Use Code of Crtasiaal Procedure. This cosatruotloa Cods support 1b the fact that the stmlsritfchir which enacted tbe Code of Civil Prottednre patted aa act am Hat vartoaa ttotieat la the Code o? Criminal Procedure, ajaasw litem tbe esettoa.foHewisc iiiUist soil, qjetedakove, aad dM Blatant atEtrtsKiSfefcrlVLaws'or Utah, 18l4,CBUuter4Vpage7"l0,) and In toe furthers Uutthekame legal-ktare legal-ktare pasted ait act for criminal procedure Injustices' courts, and-iB taat prescribed the samfe rule of rempeteiey, aad in tie tame laagmge aa is found in section 421 (Law or Utah, .1834. chapter 84, section 100, page 153) it can hardly be believed that the k-gisla-hue woull establish one rulo or compttvney foratriallu a justice's court, and a different rule for a trial of the came offense on an appeal to the District feBrt. And there are Biany offenses of which justices' ourta hare jurisdiction which are like polygamy In thtirsoclal Immorality Immor-ality and their wrong to the wife. But we do not rest our conclusion oathktechBloal argument. If there were but a Iu a.!e section in force, and thuttho one found In the Code of Civil Procedure, we thiuld hold the testimony or the wife incompetent. incompe-tent. We agree with tbr Supreme Court of California, when, la speaking speak-ing of their codes, which in respect to these sections are identical with those of Utah, It siys, in i'eoplo vs. Langtrec. (64 Cal 259.) "we think upon a fair construction both mean the same thing, although tbo Penal Code is more explicit than tbe other. On this, as on nearly every other subject to which the code relatn, they are simply .declaratory of what tbe law would be if there were no code." (See also People vs. Mailings, Mail-ings, 83 CaL 1SS.) It was a well-known rule or the common law that neither husband nor wife waa a competent witnrts In a criminal action againtt the other, except in cases or personal violence, the one upon the other, In which tbe necessities or Justice compelled a relaxation or tbe rule. We are ao-tratliat language similar to Ibis has been presented to the Supreme Courts of several States for consideration. consider-ation. Some, as in Iowa and Nebraska, Ne-braska, bold that a new rule is thereby estab'Ithed, and that the wile Is a competent witness against her husband lit a criminal prosecution prosecu-tion for bigamy or adultery, on the ground that those are tbe crimes specially against her. (State vs. Sloan, 55 Iowa, 217; Lord vs. State, 17 Neb. '.28) While others, aa in Minnesota and Texas, hold that by tin so words no departure from the common law rule is Intended. (State vs. Armstrong, 4 Minn. 251; Com-pton Com-pton vs. State, 13 Texas Appeals, 274; Overton vs. State, 43 Texas, GIG ) This precise question baa never been before this court, but tbe common law rule has been noticed and commended in Soeln vs. Bowman, Bow-man, (13 Peters, 203,222,1 In which Mr. Justice McLean used this language: lang-uage: "It is, however, admitted In all tbe cases that the wife is not competent, except in cava of violence vio-lence upon her person, directly to eliminate her husband.or to disclose that which the has learned from him In their confidential intercourse." "This rule is founded upon tbe deepest deep-est aul soundest principles of our nature, principles which have grown out of those domestic relations that constitute the basts of civil society, an J which are essential to tbe enjoyment en-joyment of that confidence which should sutslst between those who arc connected by the nearest and dearest relations of lire. To break down or ioipair the great principles which pro'ectthe anctlties or husband hus-band and wife would be to destroy the beitsolaceorbuman exit tence. We do not doubt tl e power or the legt-lature to change this ancient and welt supported rule; but an Intention In-tention to make ruch a change should no! lightly be Imputed, it cannot be as-umed that it Is indifferent indiffer-ent to sacred thIngs,or that It means to lower tbe holy relations or bus-band bus-band and wife to tbe material plane or simple contract. So, before any departuru from tho rule affirmed through the ages f the common law a rule bavins; its solid founda tion in thrbest interests or society can be adjudged, the language declaring de-claring the legislative will thould ba so clear as to pre vent doubt aa to its intent and limit. When a code is adopti d, the understanding is that such code is a declaration or established estab-lished law, rather than an enactment enact-ment or new and different rules. This is the idea or a code, except as to uiittersof procedure and Jurisdiction Jurisdic-tion which often ignore tbe past, ami require affirmative description. We conclude, therefore, that tbe section quoted from tbe Code of Civil Procedure, if applicable to n criminal case, should not be adjudged ad-judged as working a departure from the old and established establish-ed rule, unless Its language imperatively demands such construction. con-struction. Does it? The clause in the Civil Code Is negative, and de-claret de-claret that the exception of the Incompetency In-competency of wife or husband as a witness against the other does not apply to a criminal action or proceeding pro-ceeding for a crime committed by one agal list the other. Is polygamy such a crime against the wife? That it Is no wrong uiu her person Is codceded; and the common law exception ex-ception to the silence upon the lips ol husband and wife was only broken, brok-en, as we have noticed, in casta of assault of ono upon the other. That It is humiliation and outrage to her Is evident. If that Is the test, what limit is imposed? Is the wife not humiliated, is not her respect and love for ber husband outraged and betrayed, when he forgets his integrity in-tegrity as a man and violates any human or divine enactment? Is she leas sensitive, is the ee humiliated, humili-ated, when he commits murder, or robbery, or forgery, than when bo commits polygamy or a Jultery7 A true wife feels keenly any wrong of ber husband, and hrr loyalty and reverence are wounded and humll -ated bv suck condaet. Hut Him question presented by this statute Is not how much she feels or suffers, but whether the ciime Is one agal net ' her. Polygamy and adultery may : be crimes which involve disloyalty : to the marital relation, but they are : rather e rimes against such relation than against the wire; and, as the statute speaks of crimes against her, It IsialmuJy an affirmation of tbe ' old. familiar and just comaion law rule. We conclude, therefore, that . u nder this ttatute the lfe was an . Incompetent witness against ber busbaud. Other questions in the record need not be considered, as tbey will probably prob-ably not aiise on a new trial. The judgment of the Supreme Coutt of the Territory or Utah is reversed, and the caaa remanded, with instructions' tu order a new trial. True copy. Teat: JAS.II.McKKs.tEv, Clerk Supreme Court, V.S. |