64 F.2d 566 (9th Cir. 1933), 7007, Wolfle v. United States

Docket Nº:7007.
Citation:64 F.2d 566
Case Date:April 10, 1933
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 566

64 F.2d 566 (9th Cir. 1933)




No. 7007.

United States Court of Appeals, Ninth Circuit.

April 10, 1933

Appeal from the District Court of the United States for the Western District of Washington, Northern Division; Edward E. Cushman, Judge.

Wettrick, Wettrick & Flood and H. Sylvester Garvin, all of Seattle, Wash., for appellant.

Anthony Savage, U. S. Atty., and Tom De Wolfe, Asst. U. S. Atty., both of Seattle, Wash., for the United States.

Before WILBUR, SAWTELLE, and MACK, Circuit Judges.

WILBUR, Circuit Judge.

Appellant was convicted of using the mails to defraud in violation of section 215 of the Criminal Code (18 USCA § 338). The only questions pressed on the argument are the correctness of the rulings of the court on the admission of the testimony of the witness Grace Snyder, and in denying a continuance at the conclusion of the testimony by reason of the illness of the appellant. The witness Grace Snyder testified that the defendant dictated to her a letter to his wife; that she took the dictation down in shorthand; and that the letter contained the following reference to the Cantu Mine: 'I am going to break in and whenever I do, I am going to rob every last one of them blind.' Several objections were made to the introduction of this testimony, but the only one pressed in the argument is the objection that it is a privileged communication between husband and wife.

We think it clear that the statement of the husband to his stenographer is not privileged even though it was intended to be communicated to his wife. The law protecting a spouse from the testimony of the other spouse does not extend to oral communications to third persons, even if intended for transmission to the other spouse. Appellant cites no case to the contrary. The quotation in the brief from Hammons v. State, 73 Ark. 495, 84 S.W. 718, 720, 68 L. R. A. 234, 108 Am. St. Rep. 66, 3 Ann. Cas. 912, seems to support appellant's contention, but an examination of the case discloses that it tends to support the ruling of the trial court in the case at bar.

Page 567

That court said: 'The authorities are practically agreed that, when a conversation between husband and wife is overheard, it may be testified to by the third party. [Citing] 1 Greenleaf on Evidence, § 254; Comm. v. Griffin, 110 Mass. 181; Fay v. Guynon, 131 Mass. 31; Allison v. Barrow [3 Cold. (Tenn.) 414] 91 Am. Dec. 291; State v. Center, 35 Vt. 378; Griffin v. Smith, 45 Ind. 366. It is also held that a conversation is not privileged when made in the presence of third persons. [Citing] Reynolds v. State, 147 Ind. 3, 46 N.E. 31; Mainard v. Reider, 2 Ind. App. 115, 28 N.E. 196; Robbs' Appeal, 98 Pa. 501.'

The case at bar was tried in the United States District Court for the State of Washington, and in the absence of federal legislation upon the subject the law of the territory of Washington at the time of her admission into the Union as a state controls in the trial of criminal cases in...

To continue reading