State v. Pratt
| Decision Date | 03 October 1967 |
| Citation | 153 N.W.2d 18,36 Wis.2d 312 |
| Parties | STATE of Wisconsin, Respondent, v. Melvin PRATT, Appellant. |
| Court | Wisconsin Supreme Court |
Morrissy, Morrissy, Sweet & Stowe, Elkhorn, for appellant.
Bronson C. La. Follette, Atty. Gen., William A. Platz and Betty R Brown, Asst. Attys. Gen., Madison, for respondent.
The defendant's contentions raised three issues:
1. That his wife's testimony should not have been admitted since it involved privileged communications.
2. That the testimony of Deputies Lentz, Galley and Polansky should not have been admitted on the basis of Miranda v. State of Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, because defendant was not advised of his rights before he made admissions to them.
3. That the 18 month indeterminate sentence constiutes cruel and unusual punishment in violation of the eighth amendment of the Constitution of the United States and of sec. 6, art. I of the Wisconsin constitution.
The defendant contends that the girl, being his wife, may not testify against him concerning acts and communications occurring prior to marriage.
The Wisconsin statute is clear on the subject:
'885.18 Husband and wife. A husband or wife shall be a competent witness for or against the other in all cases, except that neither one without the consent of the other, during marriage, nor afterwards, shall be permitted to disclose a private communication, made during marriage, by one to the other, when such private communication is privileged. Such private communication shall be privileged in all except the following cases:
'(1) Where both husband and wife were parties to the action;
'(2) Where such private communication relates to a charge of personal violence by one upon the other;
'(3) Where one has acted as the agent of the other and such private communication relates to matters within the scope of such agency;
'(4) Where such private communication relates to a charge of pandering or prostitution.' (Emphasis supplied.)
The defendant urgently argues that it is contrary to public policy to interpret the statute so as to confine the privilege to communications made during marriage. In construing or 'interpreting' a statute the court is not at liberty to disregard the plain, clear words of the statute. The legislature by its act has determined the public policy of this state to be that the marital privilege of not testifying shall be confined to communications made during marriage and further limited this privilege by specified exceptions.
The public policy urged by the defendant may well have supported the early common law rule of incompetency of a spouse to testify, but it does not support the modern day rule of privileged communications such as the legislature of this state has adopted.
The earlier common law rule of incompetency was actually a combination of two distinct rules: (1) the rule that the spouse of a party or person interested is disqualified from testifying for the other spouse, and (2) the rule of privilege of a party against having the party's spouse testify as an adverse witness. These two rules operated to prevent the spouse from testifying at all.
Apparently the policies supporting the incompetency rules were, respectively: (1) that the spouse's testimony was tainted with his or her interest and therefore of no value, and (2) that the spouse testifying adversely would threaten the marriage relation itself.
Unlike incompetency, the privilege for marital communuications, which was nonexistent in early common law, is limited to a certain class of testimony; communications between the apouses; or in some states, information gained because of the marital relation.
The policy supporting the privilege is to encourage marital confidences.
While some early legal scholars conceived and articulated the policies supporting the privilege for marital communications, judicial recognition was virtually nonexistent until 1853 since the wider disqualification of incompetency left little opportunity for the question of the existence of such a privilege to be considered.
However, the English Evidence Amendment Act of 1853 abolished the incompetency of spouses and enacted that 'no husband shall be compellable to disclose any communication made to him by his wife during the marriage, and no wife shall be compellable to disclose any communication made to her by her husband during the marriage.' 1
Nearly all states in this country, in their statutes making spouses competent to testify, have included provisions disabling them from testifying to some types of communications between them. With the enactment of such statutes, the doctrine of privileged marital communications supplanted the doctrine of incompetency of the spouse.
Some states enacted a much broader privilege than did the 1853 English Act. However, the Wisconsin statute is almost identical to the English Act. It specifically abolishes the incompetency rule and then provides for the limited privilege for marital communications made during marriage. The Wisconsin statute clearly subscribes to the more limited policy supporting the marital privilege only and not the broader policy supporting incompetency.
The defendant cites the case of State v. Volpe (1931), 113 Conn. 288, 155 A. 223, 76 A.L.R. 1083, as involving a similar state of facts where the Connecticut supreme court ruled that the wife could refuse to testify against her husband concerning an act occurring prior to marriage. However, the Connecticut statute involved in that case is different from ours. That statute, like Wisconsin's sec. 885.18, abolishes the incompetency of the spouse, however unlike Wisconsin's enacts a much broader privilege which in effect gives the spouse an opinion to render himself or herself incompetent. 2
The defendant also cites for the court consideration San Fratello v. United States (5th Cir. 1965), 340 F.2d 560, 566, where it was said:
'The fact that the defendant marries the witness after the commission of the offense and a short time before the trial does not make an exception to the rule, even though it is for the possible purpose of preventing her from testifying.'
The 'rule' the court speaking of was:
'The common law rule * * * that the mere fact of calling one spouse as a witness for the prosecution in a criminal trial of the other for the purpose of forcing the claim of marital privilege against testifying is prejudicial error.' San Fratello, supra, p. 566.
The court in San Fratello in no way holds that the marital privilege will apply to communications made prior to marriage in the face of a statute of the contrary. In fact, San Fratello did not involve the marital privilege. The problem in the case was whether the spouse (an alleged accomplice) could be called to the stand merely for the purpose of forcing her to claim her privilege against self incrimination. The marital privilege was referred to in the opinion merely to draw upon the rules developing in states where the broader marital privilege had been enacted.
The contention that the sheriff's deputies's testimony concerning statements made by defendant should not have been admitted cannot be sustained.
The incriminating statements made by the defendant were made on two different occasions: first, in the conversation with Deputies Lentz and Galley at the Twin Lakes village hall it appears the defendant said he married the girl because he had her pregnant. Second, the following day when defendant saw Deputy Polansky he again made the statement that he married the girl because he had her pregnant. On neither occasion was defendant informed of advised of his constitutional rights. The defendant therefore contends that the deputies' testimony was inadmissible by virtue of the United States supreme court's decision in Miranda v. State of Arizona, supra.
In Johnson v. State of New Jersey (1966), 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882, the court announced that Miranda applies only to cases in which the trial began after the date of the Miranda decision, June 13, 1966. The...
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