Ex Parte Beville

• Decision Date: 23 November 1909
• Parties: Ex parte BEVILLE.
• Court: Florida Supreme Court

50 So. 685

58 Fla. 170

Ex parte BEVILLE.

Florida Supreme Court

November 23, 1909

In Banc. Application of Margaret Beville for a writ of habeas corpus. Petitioner remanded.

Syllabus by the Court

SYLLABUS

The English decisions rendered prior to the War of the Revolution are evidence of what the common law is; but, in order to be binding here, these decisions must be clear and unequivocal.

At the common law neither the husband nor wife could be witnesses for or against each other, except in case of necessity, as where the offense is directly against the person of the wife.

The common law made no distinction between the incompetency of one spouse to testify for or against the other as a matter of disability and incompetency as a matter of privilege.

By statutes in this state the husband and the wife are made competent and compellable witnesses for or against each other in both civil and criminal cases.

The change of the common-law rule by making one spouse a competent witness against the other does not affect the rule against disclosure of marital communications.

Having given the offending party an opportunity to be heard, the court has an inherent right to punish, as for a contempt, the violation of an order lawfully made to maintain its dignity authority, and efficiency in the administration of the law.

COUNSEL Thomas Palmer, J. C. B. Koonce, J. B. Johnson and J. H. Jones, for petitioner.

Park Trammell, Atty. Gen., for the State.

OPINION

PARKHILL J.

Upon petition to one of the justices, a writ of habeas corpus was granted returnable before this court.

The petitioner was adjudged guilty of contempt of court by the judge of the Fifth judicial circuit for refusing to obey an order of that court to testify before the grand jury of Sumter county against her husband, who was charged with the murder of Bruno P. Harder and Francis Harder, as to matters not involving marital confidence and as to a crime not committed upon her person.

In such a case, at common law, the wife could not be a witness for or against her husband. McGill v. McGill, 19 Fla. 341; Storrs v. Storrs, 23 Fla. 274, 2 So. 368; Schnabel v. Betts, 23 Fla. 178, 1 So. 692; Moore v. State, 45 Tex. Cr. R. 234, 75 S.W. 497, 67 L. R. A 499, 108 Am. St. Rep. 952, 2 Am. & Eng. Ann. Cas. 878, note 881.

Let us see, then, whether and to what extent this common-law rule has been altered by statute here.

In 1874 the Legislature enacted chapter 1983, providing that no person offered as a witness shall be excluded by reason of his interest in the event of the proceeding or because he is a party thereto. Laws 1874, p. 39, c. 1983. This act has remained in force to this day, becoming known as section 24, p. 518, McClellan's Dig., then section 1095, Rev. St. 1892, and now known as section 1505, Gen. St. 1906. It went to the competency of witnesses as affected by interest, and, under its provisions, if a husband was a party he was not disqualified from testifying as to his own interest, even though his wife were a party; but he could not testify as to her interest if she was a party or interested in the result; and if a wife was a party interested in the result she could testify as to her own interest, but it did not extend to her any competency in excess of that given to a husband. Williams v. Jacksonville, T. & K. W. Ry. Co., 26 Fla. 533, 8 So. 446; Haworth v. Norris, 28 Fla. 763, 10 So. 18. In other words, this statute did not change or alter the commonlaw rule of incompetency of the husband or wife to testify for or against each other, as this court decided in McGill v. McGill, 19 Fla. 341, because, as there said, this exclusion was not on the ground of pecuniary or property interest solely, but upon grounds of public policy for the protection of the marriage relation; or, as it was later expressed in Everett v. State, 33 Fla. 661, text 673, 15 So. 543, the relation of husband and wife was always an additional disability to testify for or against each other in any case, and the removal of the disability of interest would not of itself permit them to testify for or against each other. So later on, in 1879 (Laws 1879, p. 65, c. 3124), the lawmaking power of this state provided that in the trial of civil actions in this state married women shall not be excluded as witnesses in cases wherein their husbands are parties and allowed to testify. 'The act of 1879, however,' said this court, in Haworth v. Norris, supra, 'did extend to her additional competency. It says that whenever the husband is a party and allowed to testify the wife shall not be excluded as a witness. The purpose of this act was to remove the common-law disability as wife which at the time of its enactment remained unaffected by prior legislation; so wherever the husband was a party to a suit, and its character was such that his interest therein or connection with the suit would, under the act of 1874, not disqualify him from testifying as to his interest, his wife ceased, by virtue of the act of 1879, to be disqualified as wife, on the ground of public policy, from testifying as to his interests. * * * The act of 1879 does not in any manner affect the competency or incompetency of the husband as a witness.' The court cited Schnabel v. Betts, supra, where it was said, the evidence of the husband in favor of his wife was properly excluded because, while the statute authorized the wife to be a witness in a case where her husband was a party, it did not change the common-law rule which denied to the husband the right to testify for or against his wife in a civil suit against her.

So, then, after this court had said that the act of 1879 did not in any manner affect the competency or incompetency of the husband as a witness, the Legislature amended that act by chapter 4029, p. 56, Acts 1891, to read as follows: 'That in trials of civil actions in this state neither the husband nor the wife shall be excluded as witnesses, where either the said husband or wife is an interested party to the suit pending'--this provision becoming known as section 1502 of the General Statutes of 1906. And this court, in Everett v. State, 33 Fla. 661, 15 So. 543, declared that 'the act of 1891, chapter 4029, removes the disability of husband and wife to testify in civil cases to an extent far beyond both the act of 1879 and the provisions of section 1094 of the Revised Statutes as adopted. They shall not be excluded under the act mentioned, as witnesses in civil actions, where either is an interested party to the suit pending, and the right to testify here given is not dependent upon the fact that either does testify or is allowed to testify, but where either is a party to the suit pending.'

At last, after what would seem to be a patient, persistent, and intelligent effort to correct the omissions and defects pointed out each time by this court in the legislation on this subject, the Legislature accomplished its purpose to alter the common-law rule prevailing in civil cases, whereby, upon grounds of public policy, not on the ground of interest in the suit, the husband and the wife could not be witnesses for or against each other.

In 1892, as section 2863 of the Revised Statutes, the Legislature further enacted: 'The provisions of law relating to the competency of witnesses in civil cases shall obtain also in criminal cases.' And this court, in Everett v. State, supra, construed these statutory provisions and said: 'The rule as to competency of husband and wife to testify for or against each other in civil cases, as well as to the competency of witnesses in other civil cases, will apply also to criminal trials.' 'From this,' the court said, 'it follows that the circuit judge did not err in permitting Mrs. Everett to testify in the case. It may be observed that the relation of husband and wife was always an additional disability to testify for or against each other in any case, and that the removal of the disability of interest would not of itself permit them to testify for or against each other.' Mrs. Everett was the wife of the defendant who was on trial for murder, and we find, on page 664 of 33 Fla., and on page 544 of 15 South.: 'After the testimony for the state in chief had been introduced, and the defendants had made voluntary statements in their behalf to the jury, Mrs. Ellen Everett, wife of the defendant, William H. Everett, was called as a witness on the part of the state to testify in rebuttal of the statement made by her husband. An objection was made by defendant that she was not a competent witness, and this objection being overruled, an exception was duly noted.'

In Walker and Walker v. State, 34 Fla. 167, 16 So. 80, 43 Am. St. Rep. 186, the third assignment of error referred to the ruling of the court excluding testimony of Phyllis Walker, offered by the defendants. They were indicted for murder. The witness was the wife of the defendant Kenneth Walker. The state attorney this time objected and the court excluded her testimony. 'In so doing,' said this court, speaking through the Chief Justice, 'it clearly acted upon the presumption that a wife in a criminal case cannot testify for or against her husband. According to a recent decision of this court (Everett v. State, 33 Fla. 661, 15 So. 543), this was error, and she should have been permitted to testify.'

In Mercer v. State, 40 Fla. 216, 24 So. 154, 74 Am. St Rep. 135, this court again affirmed the previous construction placed upon chapter 4029, p. 56, Acts 1891, and section 2863, Rev. St. 1892, now section 3919, Gen. St. 1906, saying, through the Chief Justice: 'In construing these statutes and their bearing upon each other, this court, in the case of Everett v. State, 33 Fla. 661, 15 So. 543, and again in Walker v. State, 34 Fla. 167, ...