Halback v. Hill

• Decision Date: 01 December 1919
• Docket Number: 3274.
• Citation: 261 F. 1007
• Parties: HALBACK et al. v. HILL.
• Court: U.S. Court of Appeals — District of Columbia Circuit

261 F. 1007

HALBACK et al. v. HILL.

No. 3274.

United States Court of Appeals, District of Columbia.

December 1, 1919

Submitted October 6, 1919.

Appeal from the Supreme Court of the District of Columbia.

W. W Millan, George F. Williams, and R. E. L. Smith, all of Washington, D.C., for appellants.

H. R Burton, of Washington, D.C., for appellee.

VAN ORSDEL, Associate Justice.

This appeal is by respondents in a petition for a writ of habeas corpus from a judgment of the court below transferring the custody of an infant granddaughter of the appellants to the custody of the petitioner, the father.

It appears from the evidence that the mother of the child died when she was two weeks old; that respondent Etta Tanksley Halback, the grandmother of the child, took her at the request of the father and cared for her up to the date of the order made in this case, a period of about three years. In the return respondents allege that the petitioner voluntarily gave the child to the grandmother, assuring her that he would not interfere with the child in any way; that, during the period since the grandmother has had the care and custody of the child, respondents have borne the greater part of the expense of her care and maintenance; that the relation between the grandmother and child is to all intents and purposes that of mother and daughter; that it would be highly injurious to the child to take her out of the custody of the respondents; that petitioner, the father, had remarried on the day the petition was filed; and that they had reason to believe that his wife is not a fit or suitable person to have the responsibility of the care and education of the child.

While the writ of habeas corpus confers no jurisdiction to appoint guardians of infants, yet the court in such a proceeding, in determining merely the question of the right of custody as between the parties to the action, will look to the welfare of the infant. As was said by this court in Seeley v Seeley, 30 App.D.C. 191, 193 (12 Ann.Cas. 1058):

'The welfare of infants is a matter of paramount consideration at all times and under all circumstances. Courts of competent jurisdiction will always extend their arms to protect infants. The interest of infants is even paramount to the claim of both parents. This is the predominant question to be considered by the tribunal before whom the infant is brought. The rights of parents must in all cases yield to the interest and welfare of the infant. No certain rule can be laid down, but the courts must hold the best interests of the children as of primary importance. Their custody is one largely of judicial discretion, and that discretion is never reviewed by an appellate court, unless it has been manifestly abused.'

The jurisdiction of courts of law to determine the custody of infants in habeas corpus proceedings, as between the parties to the litigation, was upheld and considered at length by this court in Goldsmith v. Valentine, 36 App.D.C. 63.

To sustain the averments of the return, to the effect that the present wife of petitioner is not a fit or suitable person to have the responsibility of the care and education of the child, certain letters written by the wife to the husband before their marriage were offered in evidence; the husband being called upon on the witness stand to identify the handwriting. One of these letters was produced by respondents, and the others were produced by petitioner pursuant to notice. The letters were ruled out by the court below upon the theory that their production and identification amounted to compelling the husband to testify against the wife.

The policy of the law in the District of Columbia as to the right of a husband or wife to testify against the other is expressed in sections 1068 and 1069 of the Code. Section 1068 provides:

'In both civil and criminal proceedings, husband and wife shall be competent but not compellable to testify for or against each other.' Section 1069 provides:

'In neither civil nor criminal proceedings shall a husband or his wife be competent to testify as to any confidential communications made by one to the other during the marriage.'

The sole question here involved is one of the competency of a witness to testify under given circumstances. In this case the wife is neither a witness nor a party to the action. The husband, a party to the action, was giving testimony, and in course thereof was called upon to produce the letters and identify them as being in the handwriting of his wife.

The letters were excluded 'on the ground that to admit them would have the effect of compelling the husband to testify against his wife. ' 'There seems to be no difference in principle between compelling a witness to produce a document in his possession, under a subpoena duces tecum, in a case where the party calling the witness has a right to the use of such document, and compelling him to give testimony when the facts lie in his own knowledge. ' Bull v. Loveland, 10 Pick. (Mass.) 9, 14. What here occurred was not the wife testifying against the husband, but the husband producing and identifying letters written by the wife to the husband before marriage. The husband was a witness in a suit to which he was a party and to which the wife was not a party. The husband, petitioner,...