Chamberlain v. State
| Decision Date | 05 January 1960 |
| Docket Number | No. 2894,2894 |
| Citation | 348 P.2d 280 |
| Parties | Norman W. CHAMBERLAIN, Appellant (Defendant below), v. STATE of Wyoming, Appellee (Plaintiff below). |
| Court | Wyoming Supreme Court |
Frank B. O'Mahoney of O'Mahoney & Gorrell, Worland, Thomas M. McKinney, Basin, for appellant.
Thomas O. Miller, Atty. Gen., and Ralph M. Kirsch, Special Asst. Atty. Gen., and W. M. Haight, Asst. Atty. Gen., Harold Joffe, County and Pros. Atty., Worland, for appellee.
Before BLUME, C. J., and PARKER and HARNSBERGER, JJ.
Upon the prosecution of a father for the statutory rape of his thirteen-year-old minor child, the wife was permitted to testify against her husband in rebuttal. A jury convicted the defendant and he was sentenced to the penitentiary. The defendant appeals, relying upon the single ground there was prejudicial error in admitting testimony of his wife.
In the State's case in chief, the testimony of the child showed the defendant had criminally assaulted her on other occasions prior to the attack upon which the criminal complaint was based; on the night of the alleged assault she was sleeping in her bedroom with her mother; the defendant came into the room, took her mother from the bed and into an adjoining room; later the defendant returned to the child's room and criminally assaulted her; after the criminal act the defendant, in the presence of the assaulted child, told the mother he 'broke the rubber'; defendant 'still seemed frightened and fixed a douche and came and got me'; defendant took the child into the bathroom; and proceeded to administer a douche to the child. Some of this testimony was corroborated by the ten-year old sister, including her testimony that the defendant told his wife about the broken rubber.
When defendant testified in his own behalf and counsel asked him if he knew of any reason why the assaulted child was there testifying against him, he replied:
He also testified his wife charged him with having carnal knowledge of their daughter but that she afterwards told him she made a mistake in accusing him. He also denied going into the child's bedroom where his wife and child were in bed, and denied he had conversation with his wife about the douche incident.
On his cross-examination, defendant identified a letter written by him to his wife after he was first accused of the crime. Over his objection, the letter was admitted in evidence. It reads as follows:
When the wife was called in rebuttal, defendant objected to her giving any testimony on the ground that to permit her to do so would violate the provisions of § 3-2605, W.C.S.1945, now § 1-142, W.S.1957. After a discussion relative to the wife's competency, the objection was overruled on two grounds: (1) Because the offense was against the wife and (2) because the defendant had waived his right to claim the privilege of the statute by his testimony. The court said in part:
* * *'
After so stating, the court also said the wife would be strictly confined to rebuttal evidence. Except in minor respects the testimony of the wife given in her direct examination stayed within the limits set by the court. However, on her cross-examination, defense counsel inquired and she gave answers which paralleled to a large extent the testimony of the injured child, and showed that when her husband was administering the douche to the child in the bathroom she, the wife, was watching them. Also when asked by defense counsel if there was any question in her mind that her husband had carnal knowledge of the daughter, she replied unequivocally, 'He absolutely did'.
Section 1-142, W.S.1957, reads as follows:
'In no case shall the husband or wife be a witness against the other, except in criminal proceedings for a crime committed by one against the other, or in a civil action or proceeding by one or against the other, or an action brought by the husband for criminal conversation with or seduction of his wife, or in an action brought by either husband or wife for the alienation of the other's affections; but they may in all civil and criminal cases be witnesses for each other the same as though the marital relation did not exist.'
The only other statute we have which touches the subject is found in § 1-139, W.S.1957, formerly § 3-2602, W.C.S.1945, the applicable portion of which is as follows:
'The following persons shall not testify in certain respects:
* * *
* * *
3. Husband or wife, except as provided in section 3681 [§ 1-142]. * * *'
The wording of the governing statute, like that of similar statutes in many other jurisdictions, needs intrpretation. Legalistically speaking, a crime is never 'committed by one against the other'. Crimes are committed against the state. Offenses against an individual are civil wrongs. See Wilkinson v. People, 86 Colo. 406, 282 P. 257; Dill v. People, 19 Colo. 469, 36 P. 229, 41 Am.St.Rep. 254. With this distinction in mind, are we to interpret the word 'crime' to mean 'wrong' in the context wherein it is used? If it is logical to conclude the statute permits a wife to testify when she suffers wrong, even though she is not the physical victim of a criminal act, then the admission of her testimony in this case was not error. So we inquire what, if any, wrong did the mother suffer stemming from the rape of her daughter.
Each of the states, territories and possessions of our country, as well as the Philippine Islands, now has statutes relating to the competency of a spouse to testify against the other in criminal cases, but they are not uniform. In attempting to make some general classification of these laws, we find statutes of several jurisdictions making a spouse competent, but not compellable, to testify; a few states where they may be compelled to testify; and a large majority where such testimony is permissible when the accused is charged with violence or a crime against the other spouse. Within the last group are some states which also allow the testimony when the crime, violence or injury is committed against a minor child of the witness. It also appears that about one-fourth of the jurisdictions have statutes which read substantially the same as our own statute. See 2 Wigmore on Evidence, 3d ed., § 488 and 1957 Supp.
Not infrequently it is said that certain of these statutes, particularly those which permit the testimony in prosecutions of a spouse charged with violence or a crime against the other, are merely declaratory of the common law exception to the general rule which renders the spouse incompetent to testify. So in People v. Langtree, 64 Cal. 256, 30 P. 813, 814, it was said, 'On this, 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', and many old decisions are cited to justify the statement. To the same effect are a few later California cases, as well as some from other jurisdictions, including the courts of the United States. See Bassett v. United States, 137 U.S. 496, 11 S.Ct. 165, 34 L.Ed. 762, 765.
Notwithstanding these holdings, we are more disposed to believe that inasmuch as our legislature elected to discard the usual common law exception of 'violence against the person', and in lieu thereof used the broader phrase 'for a crime committed by one against the other', it is our duty to explore to the fullest what purpose it had in mind when it made the change.
In 97 C.J.S. Witnesses § 101, p. 504, it is said:
'Under statutory exceptions permitting husband or wife to testify against the other in a prosecution for a crime committed by one against the other, the right of one spouse to testify against the other exists in cases of violence against the person, and has by some authorities been limited to such offenses, such authorities construing statutes of this character as merely declaratory of the common law, although other authorities take the view that under such statutory exception a wife is competent to testify against her husband in a prosecution for any crime of his by which she is particularly and directly injured or affected, the statute being construed as rendering one spouse competent against the other in the latter's prosecution for any offense against the marriage relation or status, although holding one spouse incompetent to testify against the other where the crime is clearly one not against the person or property of the other, or even against the marital status.
'Statutes permitting either spouse to testify against the other in all cases in which an injury has been done by either against the person or property of either are not limited...
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Engberg v. Meyer
...cases in which this court has considered the statute, it never has had occasion to address a situation like this. In Chamberlain v. State, 348 P.2d 280 (Wyo.1960), the wife was called as a rebuttal witness against the husband in a prosecution of the husband for statutory rape of a minor chi......
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