Hills v. State
| Citation | 61 Neb. 589,85 N.W. 836 |
| Parties | HILLS v. STATE. |
| Decision Date | 10 April 1901 |
| Court | Supreme Court of Nebraska |
1. A wife is a competent witness against her husband in a prosecution for bigamy.
2. The mere allegation or averment of a marriage as a fact implies that the marriage was legal.
3. A communication to a minister of the gospel or priest is not privileged, where it is shown that it was not made in confidence of the relation, or was not to be kept as a secret.
4. A confession of a prisoner, voluntarily made, is admissible, when not prompted by any inducement of hope or fear.
5. A marriage solemnized in good faith is not void merely because the contracting parties may at some prior time have entered into an agreement or understanding that the marriage should be invalid.
6. A marriage legal where solemnized is valid everywhere.
Error to district court, Washington county; Irving F. Baxter, Judge.
Rowland P. Hills was convicted of bigamy, and brings error. Affirmed.M. H. Leamy and Brome & Burnett, for plaintiff in error.
The Attorney General, for the State.
This was a prosecution for bigamy. A verdict of guilty was returned, and the defendant was sentenced to the penitentiary for the term of four years. The complaint before the examining magistrate was signed and sworn to by Eliza C. Hills, the first wife of the defendant. His counsel filed a plea in abatement to the complaint on the ground that Eliza C. Hills was not a competent witness against accused, which was overruled, and the magistrate, finding probable cause to believe that defendant was guilty of the crime of bigamy as charged, held the accused to the district court, where the county attorney filed an information charging the offense substantially in the language of the complaint. The defendant presented to the district court a plea in abatement, based on the same ground as that incorporated in the one filed before the examining magistrate. A demurrer by the state to this plea was sustained, and a general demurrer to the information was overruled. On the trial, Mrs. Eliza C. Hills, over the objection of the defendant, was examined and testified as a witness on behalf of the state.
The first contention of counsel for defendant is that the court below erred in sustaining the demurrer to the plea in abatement, since the information was based on a complaint verified by the first wife of the accused. The argument is that Mrs. Hills was an incompetent witness against her husband in a prosecution for bigamy, and therefore was disqualified from swearing to the complaint. Section 331 of the Code of Civil Procedure declares that “the husband can in no case be a witness against the wife, nor the wife against the husband, except in a criminal proceeding for a crime committed by the one against the other, but they may in all criminal prosecutions be witnesses for each other.” This provision was under consideration in Lord v. State, 17 Neb. 526, 23 N. W. 507, where it was distinctly ruled that a wife was a competent witness against her husband on an indictment for adultery, since that was a crime committed by the latter against the former. This holding was cited with approval in Owens v. State, 32 Neb. 174, 49 N. W. 222. See State v. Bennett, 31 Iowa, 24;State v. Hazen, 39 Iowa, 648;State v. Sloan, 55 Iowa, 219, 7 N. W. 516;State v. Hughes (Iowa) 11 N. W. 706. There are authorities––some of which are cited in the brief of counsel for defendant––which affirm the doctrine that a statutory provision like our section 331, quoted above, is merely declaratory of the common law, and that neither a husband nor a wife is a competent witness in a criminal cause against the other except in cases of personal violence the one upon the other. To this latter view we are unable to assent. The statute in question was not simply declaratory of what the law would be without section 331. To so hold would be to impute to the legislature a useless purpose, since the common law was then in force, except where modified by statute. The lawmaking body evidently, by this section, intended to establish a new rule, and make the husband and wife competent witnesses one against the other in any criminal action for a crime committed by one against the other, whether by the infliction of personal violence or not. The wife is a competent witness against the husband in a criminal prosecution for bigamy or adultery, inasmuch as these are crimes specially against her, and not merely against the relation.
It is strenuously insisted that reversible error was committed in overruling the demurrer to the information. The argument is that the information did not charge a crime, because it did not allege that the first marriage was a lawful one. The information avers that “Rowland P. Hills, on the 11th day of September, 1885, in the county of York, England, then and there being, did then and there marry one Eliza Cook Adsetts, spinster, and her, the said Eliza Cook Adsetts, then and there had for his wife; and the said Rowland P. Hills being so married to the said Eliza Cook Adsetts, afterwards, and during the life of the said Eliza Cook Adsetts, his wife, who had not been continually and willfully absent from the said Rowland P. Hills and unheard from by him for five years, together, next before the 11th day of March, 1899, did, on the 11th day of March, 1899, in the county of Washington and state of Nebraska, then and there, and then and there being, unlawfully, willfully, and feloniously, marry one Dollie Powell, the said Eliza Cook Adsetts, his former wife, being then alive,” etc. The infirmity imputed to the information is lacking of merit. It is averred that the defendant was married at a specified time to a certain woman in England. This implies that the marriage was a lawful one. If unlawful, then there was no marriage. State v. Hughes (Iowa) 11 N. W. 706.
Rev. A. T. Young, the rector of the Episcopal church at Blair, was called and examined as a witness for the prosecution. His evidence reveals that almost immediately after the arrest of the defendant the latter sent for Rev. Young, who called upon him in the county jail. Hills' object in requesting his presence was to have the rector intercede with his first wife for a settlement of the criminal proceedings. Hills wrote a letter to the county attorney somewhat along the same line, which, at defendant's request, was delivered to the prosecuting attorney by Young. The latter was also prevailed upon by defendant to carry his wishes to his first wife, the prosecuting witness. At the time Hills wrote out a synopsis of what he wanted Rev. Young to say to Mrs. Hills No. 1, which follows: “(1) Months to stay as prosecuting witness, with several trials; (2) promise of immediate divorce, which will free her in a few weeks; (3) payment of some of her expenses; (4) the fact that she has severely punished me already, to carry it further might change public feeling, and be thought vindictive.” This paper was put in evidence by the state, and its admission is assigned for error. The first objection to the paper in question is that it was received in evidence in violation of section 353 of the Code of Civil Procedure, which provides that “no practicing attorney, * * * minister of the gospel, or priest of any denomination, shall be allowed, in giving his testimony, to disclose any confidential communication properly intrusted to him in his professional capacity, and necessary and proper to enable him to discharge the functions of his office according to the usual course of practice or discipline.” To render a communication to a minister of the gospel or priest privileged, it must have been received in confidence. By this we do not mean that it must be made under the express promise of secrecy, but rather that the communication was in confidence, and with the understanding, express or implied, that it should not be revealed to any one. The mere fact that a communication is made to a person who is a lawyer, a doctor, or a priest does not of itself make such communication privileged. To have that effect, it must have been made in confidence of the relation, and under such...
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Toth v. State
... ... may be called by the state to testify against her husband on ... an indictment for adultery. This rule remains; and, if for ... adultery, the more swiftly might she be called on an ... indictment for incest." ... Hills v ... State, 61 Neb. 589, 85 N.W. 836, 837, 57 L.R.A. 155, was a ... prosecution for bigamy. In that case the first wife signed ... the complaint before the examining magistrate, and later, ... over objection, testified as a witness for the state. This ... court, citing Lord v. State, supra, ... ...
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...Comp. St. 1929, sec. 42-117. See Gibson v. Gibson, 24 Neb. 394, 39 N.W. 450; Bailey v. State, 36 Neb. 808, 55 N.W. 241; Hills v. State, 61 Neb. 589, 85 N.W. 836; v. Hand, 87 Neb. 189, 126 N.W. 1002; Staley v. State, 89 Neb. 701, 131 N.W. 1028. A careful examination of the record as an entir......
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