Show AN IMPORTANT JUDICIAL RULING no october term 1890 Wili william tarn E bassett Bax sett plaintiff in error vs the united states stated in error to the supreme court of the territory orv of utah december 22 1890 1 mr juakin brewer delivered the opinion of the court on november 23 1886 the grand jury of the first judicial district court of utah found an indictment for polygamy against the plaintiff in error charAn whim with having married one kate amith on the day of august 1884 when hie big lawful fu wife sarah ann williams was wag still living and upon trial before a aturya j u ry a verdict of guilty was returned and he was sentenced to imprisonment for a term of five years vears and to pay a fine of five hundred dollars such sentence on appeal was affirmed by the 8 supreme U reme court of the territory ang and is now brought to this court for review A preliminary question Is presented by the attorney general it is urged that there was no proper bill of exceptions as to the proceed 1 ino ings in the trial caura and ze therefore nothing is presented which this thid court can review but we are reviewing the judgment of the 8 u preme aou rt of the th e territory and the rule in this court is not to consider questions other than those of jurisdiction which were not presented to the court whose judgment we are asked to ex examine anADe dark clark v fredericks U 8 4 beyond the fact that the proceedings of the trial court were examined and considered by the supreme court of the territory and are therefore presumably by this court is this matter noticed in this court in the case of hopt v utah U 8 that a large liberty of review is given by the statutes of utah to the supreme court of the territory even in the of a formal bill of exceptions see also stringfellow 9 fellow v cain 99 U 8 0 oreilly re my v campbell U IS 8 but it is unnecessary to rest upon this recognition by the supreme court of the territory or the presumptions re M arising the record shows the pleadings proceedings ce and exceptions to the charbel chare eLof of the trial judge all certified properly toy by T A perkins the clerk of the trial court at the close of his certificate which is of date of january is this statement and I 1 further certify that a copy of defendants bill of exceptions in said cause is not made part hereof because said bill of exceptions is in the pos possession of defendants counsel at the city of salt lake and because I 1 am informed b by y iaz isaid id counsel that it has been stipulated u by and between themselves and the united states district attorney for utah territory that the original thereof in place of such copy should be u used sed in the sup supreme re m e co court urt u upon po n this appeal P the bill of exceptions referred to toby by him in this statement is signed by the trial fudge and thus endorsed no first dist court utah the united states vs william E bassett polygamy bill of exceptions filed january 19 1887 T A perkins clerk and also by the clerk of the supreme court of ef the territory as filed feb february 2 1887 1887 the date of n ling filing of the transcript of the p proceedings proceed ings of the trial court the I 1 import apor t of all this is that the bill of exceptions signed by the trial j judge edg e w was as filed in the trial court and that for the purposes of economy atme aime and convenience ven veni tence ence such original bill together with the record of the proceedings was brought to and filed in the supreme court after having been filed in the trial court it needs but this if a copy is good the original is equally goo gool I 1 the identification or of such bill of exceptions is perfect vouched couched by the signatures of the trial judge the clerk of the district court and the clerk of the supreme court to ignore such authentication would place this court in the attitude of resting reefing on a mere technicality to avoid an inquiry into the substantial rights of a party as considered and determined by both the trial court and the supreme court of the territory in the absence of a statute or special rule of law compelling such a practice we decline to adopt it pawing passing from this question of practice to the merits the principal question aud the only one we deem necessary to consider is this the wife of the defendant was called as a witness for the prosecution and permitted to testify as to confessions made by him to her in respect to the crime charged and her testimony was the only direct evidence against him this testimony was admitted under the first paragraph of section 1156 of the code of civil procedure enacted in 1884 deetion of the compiled laws of utah 1888 which reads A laus husband band cannot be examined for or against his wife without her bar consent coo sent nor a wife for or against her husband without his consent nor can either during the marriage or afterwards be without the consent of the other examined as to any corn nation made by one to theother the other during the marriage but this exception does not apply to 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 other and the contention is that polygamy is within the lan an guage of that taftt paragraph a crime committed by the husband against the wife we think this ruling erroneous A technical argument against it to is this the section is found in the code of civil procedure and its provisions should not be hold held to determine the competency of witnesses in criminal cases especially when there is a code of criminal procedure which contains sections prescribing the conditions of competency section of the code of criminal procedure section of the compiled laws 1888 to is as an follows C except with the consent of both or in eases of criminal violence upon one by the other neither husband nor wife are competent witnesses for or against each other ether in a criminal antion action or proceeding to which one or both are parties clearly under that section the wife to is not a competent witness it is true that the code of criminal procedure was enacted in 1878 and the code of civil procedure in 1884 so that the latter is the last expression of the legislative will but a not unreasonable construction is that the last clause of this paragraph was inserted simply to prevent the rule stated in the first clause from being held to apply to the cases stated in the last leaving the rule controlling in criminal cases to be determined by the already enacted section in the code of criminal procedure this construction finds support in the fact that the same legislature which enacted the code of civil procedure dime passed an act amending various sections in the code of criminal procedure among them the section following section quoted above and did not in terms amend such section laws of utah 1884 chapter 48 page and in the further fact that the same legislature passed an act for criminal priced procedure u re I 1 injustices n j justices ices oo 00 u arts and I 1 in n that prescribed the same rule of competency and in the same language as to is found in section laws of utah 1884 chapter 64 54 section page tt it can hardly be believed that the legislature would establish one rule of competency for a trial in a justices court and a different rule for a trial of th the same offense on an appeal to the district court and there are which justices courts have jurisdiction which are like polygamy in their social immorality and their wrong to the wife but we do not rest our conclusion on this technical argument if there were but a single section in force and that the one found inthe in the code of bivil civil procedure we should hold the testimony of the wife incompetent we agree with the supreme court of california when in speaking of their codes which in respect to these sections are identical with those af utah it says in people vs langtree 64 cal we think upon a fair construction both mean the same thing although the penal code is more explicit than the other on this thia as on nearly every other subject to which the codes relate they are simply declaratory of what the law would be if there were no codes see also people vs mull ings it was a well known rule of the common law that neither husband nor wife was a competent witness in a criminal action against the other except in oases cases of personal violence the one upon the other in which the necessities of justice compelled a relaxation of the rule we are aware that laja language gage similar to this has been presented to the supreme courts of several states for consideration some as ab in iowa and nebraska bold that a new rule is thereby established and that the wife is a competent witness against her husband in a criminal prosecution for bigamy or adultery on the ground that those are the crimes specially against her state vs sloan 65 55 iowa lord vs state 17 neb chife others as in minnesota and texas hold bold that by these words no departure from the common law rule is intended state vs Armst armstrong rODg 4 minn compton vs state 18 texas appeals overton vs state 48 43 texas this precise question has never been before this court but the common law rule has been noticed and commended in stein vs bowman 18 peters in which mr justice mclean used faed this language it is however how admitted in all the cases that the wife is not competent except in cases of violence upon her person directly to crial criminate nute her hus bandor to disclose that which she bebas bas learned from him in their confidential intercourse inter couise ya this rule is founded upon the deepest and soundest principles of our nature principles which wave 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 beat solace of b human u man existence 1 we do not doubt the power of the legislature to change this ancient and well supported rule but an intention to make such a change should not lightly be imputed it cannot be assumed that it is ent to sacred thing sor that it means to lower the holy relations of husband and wife to the material materi sl plane of simple contract before any departure from the rule affirmed through the ages of f the common law lawa a rule having its solid foundation in the best interests of society can be adjudged the language declaring the legislative will should be so clear as to prevent doubt as to its intent and limit a code to is adopted the understanding is that such code is a declaration of established law rather than an enact ment of new and different rules this is the idea of a code except as to matters matter of procedure and jurisdiction which often ignore the past and require affirmative description we conclude therefore that the section quoted from the code of civil procedure if applicable to a criminal case should not be adjudged as working a departure from the old and established rule unless its language imperatively demands such construction st does it the clause in the civil code is negative and declares that the exception of the in competency of wife or husband as a witness against the other does not apply to a criminal action or proceeding for a crime committed by one against the other Is polygamy such a crime against the wife that it le is no wrong upon her person is conceded and the common law exception to the silence upon the lips of husband and wife was only broken as we have noticed in cases of assault of one 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 M her husband outraged and betrayed when he forgets his integrity as a man and violates any human or divine enactment Is she less leas sensitive is she lops lees humiliated when he be commits murder or robbery or forgery than when he commits polygamy or adultery A true wife feels keenly any wrong of her husband and her loyalty and reverence are wounded and humiliated by such conduct but the question presented by this statute is not how much she ehe feels or suffers but whether the ex caime ime is one against her polygamy and adultery may be crimes which involve disloyalty to the marital relation but they are rather crimes against such relation than against the wife and as the statute speaks of crimes against her it is simply an affirmation of the old familiar and just common law rule we conclude therefore that u under ader thle bis statute the wife was an incompetent witness against her husband other questions in the record need not be considered as they will probably ab r not arise on a new trial the h e j judgment of the su supreme r reme court of the territory of UM utah 1 is rev reversed erseil and the case remanded with instructions to order a new trial true copy test JAB H clerk supreme court U S |