Denning v. United States

• Decision Date: 14 January 1918
• Docket Number: 3176.
• Citation: 247 F. 463
• Parties: DENNING v. UNITED STATES.
• Court: U.S. Court of Appeals — Fifth Circuit

247 F. 463

DENNING v. UNITED STATES.

No. 3176.

United States Court of Appeals, Fifth Circuit.

January 14, 1918

John F Weeks, of El Paso, Tex. (Hudspeth & Harper and Chas. Owen all of El Paso, Tex., on the brief), for plaintiff in error.

R. E Crawford, Asst. U.S. Atty., of El Paso, Tex.

Before WALKER and BATTS, Circuit Judges, and FOSTER, District Judge.

BATTS Circuit Judge.

Plaintiff in error was convicted upon the charge of having feloniously persuaded and induced a woman to go from one place to another in interstate commerce for the purpose of prostitution. The woman was his wife. The wife was called as a witness, and her testimony, with other evidence in the case, was sufficient to sustain the verdict. If her testimony be rejected, the evidence is insufficient.

The conviction was had in the Western district of Texas, and plaintiff in error suggests that the rules of evidence to be applied are articles 774 and 775 of the Code of Criminal Procedure of Texas of 1895, regulating the circumstances under which the wife might testify against her husband. Texas authorities interpreting these articles are cited to the effect that the wife cannot give testimony against her husband, except in cases involving physical violence to her person. It is perfectly clear, from the decisions of the Supreme Court of the United States, that state statutes regulating the admission of testimony in criminal cases have no application to the trial of such cases in federal courts. United States v. Reid, 12 How. 361, 13 L.Ed. 1023; United States v. Logan, 144 U.S. 263, 12 Sup.Ct 617, 36 L.Ed. 429.

The specific question here presented has not been passed upon by the Supreme Court, and there is divergence of opinion among the Circuit Courts of Appeal. As strong a statement of the common law, which we assume to be applicable, as can be made, is the language of Justice McLean in the case of Stein v. Bowman, 13 Pet. 209, 10 L.Ed. 129, to the effect:

'It is, however, admitted, in all the cases, that the wife is not a competent' witness, 'except in cases of violence upon her person, directly to criminate her husband, or to disclose that which she had learned from him in their confidential intercourse. ' 'This rule,' says the court, 'is founded upon the deepest and soundest principles of our nature-- principles which have 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.'

Justice Brewer, in the case of Bassett v. United States, 137 U.S. 496, 11 Sup.Ct. 165, 34 L.Ed. 762, used this language:

'And the common-law exception to the silence upon the lips of the husband and wife was only broken, as we have noticed, in cases of assault of one upon the other.'

Continues the court:

'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.'

The common law had no occasion to deal specifically with the matter under consideration, and any rule which is now to be applied must be the result of an application of its principles. The question to be determined is whether the offense here under consideration is also a crime 'against the wife,' or merely a crime 'against the marital relation.'

The first case brought to out attention specifically ruling upon the matter here involved is U.S. v. Rispoli (D.C.) 189 F. 271, wherein District Judge McPherson permitted the wife to testify, holding that, in cases...