Jackson v. United States, 16580.
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
| Writing for the Court | RIVES, JONES and BROWN, Circuit |
| Citation | 250 F.2d 897 |
| Parties | Katherine Idell JACKSON, Appellant, v. UNITED STATES of America, Appellee. |
| Docket Number | No. 16580.,16580. |
| Decision Date | 07 January 1958 |
250 F.2d 897 (1958)
Katherine Idell JACKSON, Appellant,
v.
UNITED STATES of America, Appellee.
No. 16580.
United States Court of Appeals Fifth Circuit.
January 7, 1958.
Ralph Kennamer, U. S. Atty., Mobile, Ala., for appellee.
Before RIVES, JONES and BROWN, Circuit Judges.
JONES, Circuit Judge.
The appellant was indicted, convicted and placed on three years probation for presenting to the Veterans Administration a claim for Servicemen's Indemnity as the widow of Frederick Rodgers when, in fact, she knew she was not his widow, in violation of 18 U.S.C. A. § 287. From her conviction she has appealed.
The appellant and A. B. Anderson were married on April 9, 1950. They separated in less than two years and did not again live together. At the trial Anderson was called as a witness for the Government. He stated his name and gave his age and address. Defense counsel then interposed —
"It just occurred to me that if, as the Government contends, this witness is the husband of the defendant, then, I respectfully suggest the disqualification of the witness, in the absence of the defendant\'s consent for him to testify."
The United States Attorney inquired, "Is the objection from the wife that her husband is testifying, and, if so, I will withdraw him." The witness stated that he had no objection to testifying. The court permitted him to testify that he was married to the defendant and so far as he knew they had never been divorced. The appellant claims this was error. We agree.
Rule 26 Fed.Rules Crim.Proc., 18 U.S. C.A. provides:
"The admissibility of evidence and the competency and privileges of witnesses shall be governed, except where an act of Congress or these rules otherwise provide, by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience."
At common law neither husband nor wife is competent to testify in a criminal suit for or against the other. 3 Wharton's Criminal Evidence, 12th Ed. p. 100, § 764. The Supreme Court has held:
"The federal courts have held that one spouse cannot testify against the other unless the defendant spouse waives the privilege. Miles v. United States, 103 U.S. 304, 26 L. Ed. 481; Bassett v. United States, 137 U.S. 496, 11 S.Ct. 165, 34 L.Ed. 762; cf. United States v. Mitchell, 2 Cir., 137 F.2d 1006, 1008. Since this Court in the Funk case left open the question whether this rule should be changed, Funk v. United States, 290 U.S. 371, 373, 54 S.Ct. 212, 78 L.Ed. 369, 371 93 A.L.R.
1136, it presumably is still the `federal rule\' for the lower courts." Griffin v. United States, 336 U.S. 704, 69 S.Ct. 814, 819, 93 L.Ed. 993, rehearing denied 337 U.S. 921, 69 S. Ct. 1152, 93 L.Ed. 1730.
That which was presumably still the "federal rule" when the Griffin case was decided in 1948 was recognized in Ford v. United States, 5 Cir., 1954, 210 F.2d 313. We are not here concerned with a case where the offense charged is one against the spouse such as Levine v. United States, 5 Cir., 1947, 163 F.2d 992, or where the marriage was sham as in Lutwak v. United States, 344 U.S. 604, 73 S.Ct. 481, 97 L.Ed. 593. No consent was given by the defendant Katherine Idell Jackson to the testimony of Anderson. A specific objection was not required. 8 Wigmore on Evidence, 3rd Ed. p. 263, § 2241. See Olender v. United States, 9 Cir., 1954, 210 F.2d 795, 42 A. L.R.2d 736. It was enough that the absence of the defendant's consent be suggested to the court. The admission of the testimony of Anderson was error.
In appellant's specifications of error it is asserted that the court denied her counsel's request to examine a document to which Government witness Faulkner, an F. B. I. Agent, referred while testifying. The Government says the record does not show that the witness had any document in his possession while on the stand. The appellant has filed a motion to supplement the record and have a hearing on the issue as to whether the witness took a document to the stand and referred to it on the trial. The Government does not question the rule that where a witness uses any paper to refresh his memory while he is on the stand, the opposing side, on proper demand, may examine the paper and use it on cross-examination. See Montgomery v. United States, 5 Cir., 1953, 203 F. 2d 887, and cases there cited. Since the case must be reversed for a new trial we see no need for us to consider whether the record should be...
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U.S. v. Elam, No. 81-1042
...United States v. Juarez, 566 F.2d 511 (5th Cir. 1978); Meeks v. United States, 259 F.2d 328 (5th Cir. 1958); Jackson v. United States, 250 F.2d 897 (5th Cir. 1958). Consequently, the evidence as to Jennings and Miller cannot be reviewed except to prevent "manifest miscarriage of justice" or......
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United States v. Piper, CR-3-63-113.
...United States (C.A. 5, 1960), 285 F.2d 85; T'Kach v. United States (C.A. 5, 1957), 242 F.2d 937; Jackson v. United States (C.A. 5, 1958), 250 F.2d 897. At the close of all evidence the court advised counsel of its proposed charge, to which defendant's counsel raised objections and made requ......
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Kennedy v. State, 8 Div. 398
...as an admission of their value.' 'Silence, in the absence of a duty to speak, is not an admission,' Jackson v. United States, 5 Cir., 250 F.2d 897, 900, a case where an F. B. I. agent had warned [39 Ala.App. 682] the defendant that whatever she said might be used against her. 1 See also Hel......
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Smyly v. United States, No. 18479.
...F.R.Civ.P. 50, 28 U.S.C.A. The first, as pointed out by Judge Rives, concurring in our decision in Jackson v. United States, 5 Cir., 1958, 250 F.2d 897, 901, which holds that the Trial Judge at the close of the Government's evidence may not take a motion for judgment of acquittal "along wit......
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U.S. v. Elam, No. 81-1042
...United States v. Juarez, 566 F.2d 511 (5th Cir. 1978); Meeks v. United States, 259 F.2d 328 (5th Cir. 1958); Jackson v. United States, 250 F.2d 897 (5th Cir. 1958). Consequently, the evidence as to Jennings and Miller cannot be reviewed except to prevent "manifest miscarriage of justice" or......
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United States v. Piper, CR-3-63-113.
...United States (C.A. 5, 1960), 285 F.2d 85; T'Kach v. United States (C.A. 5, 1957), 242 F.2d 937; Jackson v. United States (C.A. 5, 1958), 250 F.2d 897. At the close of all evidence the court advised counsel of its proposed charge, to which defendant's counsel raised objections and made requ......
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Kennedy v. State, 8 Div. 398
...as an admission of their value.' 'Silence, in the absence of a duty to speak, is not an admission,' Jackson v. United States, 5 Cir., 250 F.2d 897, 900, a case where an F. B. I. agent had warned [39 Ala.App. 682] the defendant that whatever she said might be used against her. 1 See also Hel......
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Smyly v. United States, No. 18479.
...F.R.Civ.P. 50, 28 U.S.C.A. The first, as pointed out by Judge Rives, concurring in our decision in Jackson v. United States, 5 Cir., 1958, 250 F.2d 897, 901, which holds that the Trial Judge at the close of the Government's evidence may not take a motion for judgment of acquittal "along wit......
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Trial
...the valuable right of a defendant to stand on the motion for judgment of acquittal, Fed. R. Crim. P. 29; Jackson v. United States , 250 F.2d 897, 901 (5th Cir. 1958), and the hazard that comes to one who undertakes to put on a case after the motion is denied, it is difficult to see how evid......