290 U.S. 371 (1933), 394, Funk v. United States

Docket Nº:No. 394
Citation:290 U.S. 371, 54 S.Ct. 212, 78 L.Ed. 369
Party Name:Funk v. United States
Case Date:December 11, 1933
Court:United States Supreme Court

Page 371

290 U.S. 371 (1933)

54 S.Ct. 212, 78 L.Ed. 369



United States

No. 394

United States Supreme Court

Dec. 11, 1933

Argued November 13, 14, 1933




1. In a federal court, the wife of the defendant on trial for a criminal offense is a competent witness in his behalf. Hendrix v. United

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States, 219 U.S. 79, and Jin Fuey Moy v. United States, 254 U.S. 189, overruled on this point. Pp. 373, 386.

2. In the absence of a federal statute governing the subject, the competency of witnesses in criminal trials in federal courts is determined by the common law. P. 379.

3. In the taking of testimony in criminal cases, the federal courts are not bound by the rules of the common law as they existed at a specified time in the respective states; they are to apply those rules as they have been modified by changed conditions. P. 379.

4. The reasons anciently assigned for disqualifying a wife as a witness in behalf of her husband in criminal cases can no longer be accepted in the federal courts in view of modern thought and legislation touching the subject. P. 380.

5. The public policy of one generation may not, under changed conditions, be the public policy of another. P. 381.

6. The federal courts have no power to amend or repeal a rule of the common law; but they have the power, and it is their duty, in the absence of any congressional legislation on the subject, to disregard an old rule which is contrary to modern experience and thought and is opposed in principle to the general current of legislation and judicial opinion, and to declare and apply what is the present rule in the light of the new conditions. Pp. 381-383.

7. The common law is not immutable, but flexible, and by its own principles adapts itself to varying conditions. P. 383.

66 F.2d 70 reversed.

Certiorari to review the affirmance of a conviction upon an indictment for conspiracy to violate the National Prohibition Law.

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SUTHERLAND, J., lead opinion

MR. JUSTICE SUTHERLAND delivered the opinion of the Court.

The sole inquiry to be made in this case is whether, in a federal court the wife of the defendant on trial for a criminal offense is a competent witness in his behalf. Her competency to testify against him is not involved.

The petitioner was twice tried and convicted in a federal District Court upon an indictment for conspiracy to violate the prohibition law. His conviction on the first trial was reversed by the Circuit Court of Appeals upon a ground not material here. 46 F.2d 417. Upon the second trial, as upon the first, defendant called his wife to testify in his behalf. At both trials, she was excluded upon the ground of incompetency. The Circuit Court of Appeals sustained this ruling upon the first appeal, and also upon the appeal which followed the second trial. 66 F.2d 70. We granted certiorari limited to the question as to what law is applicable to the determination of the competency of the wife of the petitioner as a witness.

Both the petitioner and the government, in presenting the case here, put their chief reliance on prior decisions of this Court. The government relies on United States v. Reid, 12 How. 361; Logan v. United States, 144 U.S. 263; Hendrix v. United States, 219 U.S. 79, and Jin Fuey Moy

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v. United States, 254 U.S. 189. Petitioner contends that these cases, if not directly contrary to the decisions in Benson v. United States, 146 U.S. 325, and Rosen v. United States, 245 U.S. 467, are so in principle. We shall first briefly review these cases, with the exception of the Hendrix case and the Jin Fuey Moy case, which we leave for consideration until a later point in this opinion.

In the Reid case, two persons had been jointly indicted for a murder committed upon the high seas. They were tried separately, and it was held that one of them was not a competent witness in behalf of the other, who was first tried. The trial was had in Virginia, and, by a statute of that state passed in 1849, if applicable in a federal court, the evidence would have been competent. Section 34 of the Judiciary Act of 1789 declares that the laws of the several states, except where the Constitution, treaties, or statutes of the United States otherwise provide, shall be regarded as rules of decision in trials at common law in the [54 S.Ct. 213] courts of the United States in cases where they apply, but the court said that this referred only to civil cases, and did not apply in the trial of criminal offenses against the United States. It was conceded that there was no act of Congress prescribing in express words the rule by which the federal courts would be governed in the admission of testimony in criminal cases. "But," the court said (p, 363),

we think it may be found with sufficient certainty, not indeed in direct terms, but by necessary implication, in the acts of 1789 and 1790, establishing the courts of the United States, and providing for the punishment of certain offences.

The court pointed out that the Judiciary Act regulated certain proceedings to be had prior to impaneling the jury, but contained no express provision concerning the mode of conducting the trial after the jury was sworn and prescribed no rule in respect of the testimony to be taken. Obviously, however, it was said, some certain and

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established rule upon the subject was necessary to enable the courts to administer the criminal jurisprudence of the United States, and Congress must have intended to refer them to some known and established rule

which was supposed to be so familiar and well understood in the trial by jury that legislation upon the subject would be deemed superfluous. This is necessarily to be implied from what these acts of Congress omit, as well as from what they contain.

P. 365. The court concluded that this could not be the common law as it existed at the time of the emigration of the colonists or the rule which then prevailed in England, and [therefore] the only known rule which could be supposed to have been in the mind of Congress was that which was in force in the respective states when the federal courts were established by the Judiciary Act of 1789. Applying this rule, it was decided that the witness was incompetent.

In the Logan case, it was held that the competency of a witness to testify in a federal court sitting in one state was not affected by his conviction and sentence for felony in another state, and that the competency of another witness was not affected by his conviction of felony in a Texas state court, where the witness had since been pardoned. The indictment was for an offense committed in Texas and there tried. The decision was based, not upon any statute of the United States, but upon the ground that the subject

is governed by the common law, which, as has been seen, was the law of Texas . . . at the time of the admission of Texas into the Union as a state.

P. 303.

We next consider the two cases upon which petitioner relies. In the Benson case, two persons were jointly indicted for murder. On motion of the government, there was a severance, and Benson was first tried. His codefendant was called as a witness on behalf of the government. The Reid case had been cited as practically decisive

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of the question. But the court, after pointing out what it conceived to be distinguishing features in that case, said (p. 335): "We do not feel ourselves therefore precluded by that case from examining this question in the light of general authority and sound reason." The alleged incompetency of the codefendant was rested upon two reasons -- first, that he was interested, and, second, that he was a party to the record, the basis for the exclusion at common law being fear of perjury. "Nor," the court said,

were those named the only grounds of exclusion from the witness stand. Conviction of crime, want of religious belief, and other matters were held sufficient. Indeed, the theory of the common law was to admit to the witness stand only those presumably honest, appreciating the sanctity of an oath, unaffected as a party by the result, and free from any of the temptations of interest. The courts were afraid to trust the intelligence of jurors. But the last 50 years have wrought a great change in these respects, and today the tendency is to enlarge the domain of competency, and to submit to the jury for their consideration as to the credibility of the witness those matters which heretofore were ruled sufficient to justify his exclusion. This change has been wrought partially by legislation and partially by judicial construction.

Attention then is called to the fact that Congress, in 1864, had enacted that no witness should be excluded from testifying in any civil action, with certain exceptions, because he was a party to or interested in the issue tried, and that, in 1878 (c. 37, 20 Stat. 30), Congress made the defendant in any criminal case a competent witness at his own request. The opinion then continues (p. 337):

Legislation of similar import prevails in most of the states. The spirit of this legislation has controlled the decisions of the courts, and steadily, one by one, the merely technical barriers which excluded witnesses from the stand have been removed, till now it is generally,

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though perhaps not universally, true that no one is excluded therefrom unless the lips of the originally adverse party are closed by death, or unless some one of those peculiarly confidential relations, like that of husband and wife, forbids the breaking of silence.

. . . If interest and being party to the record do not exclude a defendant on trial from the witness stand, upon what...

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