McCormick v. State

• Citation: 186 S.W. 95,135 Tenn. 218
• Parties: MCCORMICK v. STATE.
• Decision Date: 13 May 1916
• Court: Tennessee Supreme Court

186 S.W. 95

135 Tenn. 218

MCCORMICK v. STATE.

Supreme Court of Tennessee.

May 13, 1916

Error to Circuit Court, Henry County; Thos. E. Harwood, Judge.

Raymond McCormick was convicted of begetting an illegitimate child and brings error. Reversed and remanded.

Fitzhugh & Morton, of Paris, for plaintiff in error.

W. H Swiggart, Jr., Asst. Atty. Gen., for the State.

GHOLSON Special Judge.

The plaintiff in error, who will hereinafter be called the defendant, was indicted at the November term, 1914, of the circuit court of Henry county, for begetting an illegitimate child upon his wife's sister. He was tried and found guilty by a jury at the July term, 1915. Motions for a new trial and in arrest of judgment were made and overruled, and judgment was rendered that he be confined in the penitentiary of the state for an indeterminate period of not less than two years, nor more than ten years, and that he be rendered infamous, etc. From this judgment defendant has appealed to this court, and has assigned errors.

It is conceded by the learned Assistant Attorney General that the judgment of infamy rendered by the lower court should be modified, so as to disqualify the defendant from holding office, but that no further disqualification should be adjudged; the offense described in the indictment not being an infamous crime. Shannon's Code, § 7199.

The case has been ably argued in this court, and most excellent and helpful briefs have been filed by both sides.

We do not deem it necessary, in the view which we take of the case to discuss the evidence any further than it may be needed to consider those assignments of error which we will specifically consider.

The fifth assignment of error is as follows:

"The court erred in declining to set aside the verdict and grant the defendant a new trial, because, over the defendant's objection, the court permitted the wife of defendant to testify against him, contrary to the rules of law and evidence."

It is insisted for the state that the defendant, not having objected to his wife when offered as a witness, an objection being later offered to only certain parts of her testimony, cannot now be heard to question her competency as a witness.

The constitutionality of chapter 161, Acts of 1915, is attacked; said act being in words and figures as follows:

"An act to permit the husband or wife to testify for or against each other in all criminal cases in Tennessee.

Section 1. Be it enacted by the general assembly of the state of Tennessee, that hereafter in all criminal cases in the state the husband or wife shall be a competent witness to testify for or against each other."

The state insists that, even without the above act, the wife would have been allowed to testify, if no objection was offered to her competency as a witness, and that, as the defendant did not seasonably offer such objection, he cannot question the validity of said act.

We think that this point is well taken, and that the objection should have been made by the defendant when she was first offered as a witness against him. But inasmuch as the court was subsequently asked to exclude all of her evidence, and as the question is one of importance, we deem it proper to consider the constitutionality of the above act.

It is contended by counsel for the defendant that the title of said act is restrictive, and that the body is general; that the express intent is "to permit the husband or wife to testify for or against each other in all criminal cases in Tennessee"; that the body of the act says, "The husband or wife shall be a competent witness," etc.; that the legislative intention as expressed in the caption was permissive--that is, either the husband or wife would be permitted to testify when either voluntarily offered as a witness, but not that either would be a compellable witness; that the body of the act meant that all the power of the law might be brought to bear to force one spouse to testify against the other.

The constitutional provision invoked is section 17 of article 2, as follows:

"No bill shall become a law which embraces more than one subject, that subject to be expressed in the title."

The provision of our Constitution just quoted was adopted to prevent surprise upon the Legislature, by means of provisions in bills of which the titles gave no intimation, and they might therefore be overlooked and carelessly and unintentionally adopted. Cooley, Const. Lim. 145; Cannon v. Mathes, 8 Heisk. 521.

The method adopted in the body of the act for accomplishing the purpose expressed in the caption was to make the husband and wife competent witnesses, and thus to authorize or permit each to testify for or against the other. If it should result, from the making of the husband and wife competent witnesses, that each may be compelled to testify against the other, that is a mere incidental result of the provisions of the act which would be necessary to accomplish the purpose described in the caption of the act. It cannot be held invalid because of such result. This provision of the body of the act is not only germane to the subject expressed in the title, but is a direct means, and probably the only direct means, available for accomplishing the purpose expressed in the caption. We are therefore of the opinion that the attack on the constitutionality of said act is without merit.

The sixth and seventh assignments of error are that the trial judge erred in permitting defendant's wife to testify to statements made by defendant to her in private, and in confidence, on the ground that such statements were privileged communications, and therefore incompetent as evidence against him.

It was contended in support of these assignments of error that the act above quoted, making the husband or wife a competent witness, does not affect the rules of law relating to privileged testimony, and that although made a competent witness, by removal of the disability of coverture, one spouse cannot divulge the confidential communications of the other, and may not testify against the other to facts which may have come to his or her knowledge solely by virtue of the marital relation.

In the case of Insurance Co. v. Shoemaker, 95 Tenn. 82, 31 S.W. 270, Mr. Justice Wilkes concisely stated the rule in this state, in civil cases, as follows:

"We are of opinion that all transactions and conversations had between the husband and wife in relation to their own affairs, not in the presence of some third person * * * must be excluded. * * * This, we think, is in accord with the former holdings of this court"--citing Patton v. Wilson, 2 Lea, 101, 113; Orr v. Cox, 3 Lea, 621; Hyden v. Hyden, 6 Baxt. 408; Brewer v. Ferguson, 11 Humph. 565; Kimbrough v. Mitchell, 1 Head, 540; and Barker v. McAuley, 4 Heisk. 424.

The case of Norman v. State, 127 Tenn. 355, 155 S.W. 135, 45 L. R. A. (N. S.) 399, is one in which a very able opinion was delivered by Mr. Justice Buchanan, wherein he said:

"No public policy is sound which, in the name of public justice, invades the home and takes therefrom the wife as a witness against the husband, or the husband against the wife, and by means of the evidence of one consigns the other to the gallows, the penitentiary, or the jail. An increased number of convictions might result from such a policy, but at a cost which the public could ill afford. The home is the sanctuary of our civilization, and the increased number of convictions would not compensate for the homes destroyed."

The foregoing decisions were rendered before the passage of Acts 1915, c. 161. This act does not have the provision of chapter 200 of the Acts of 1879 (Shannon's Code, §§ 5596 and 5597), that neither of them "shall testify as to any matter that occurred between them by virtue or in consequence of the marital relation."

So we must decide whether or not, since the passage of said act of 1915, a husband or wife will be permitted, over objection, to testify in criminal cases in this state, as to any matter that occurred between them by virtue or in consequence of the marital relation, or as to any confidential communications between them.

"All communications between husband and wife are presumed confidential and privileged until the contrary appears." Wigmore, Ev. § 2336, pp. 3260, 3264.

The Supreme Court of Florida, in passing upon statutes of that state removing the incompetency as witnesses of husband and wife, because of the interest of either, in both civil and criminal cases, among other things said:

"Society has a deeply rooted interest in the preservation of the peace of families, and in the maintenance of the sacred institution of marriage, and its strongest safeguard is to preserve with jealous care any violation of those hallowed confidences inherent in, and inseparable from, the marital status. Therefore the law places the ban of its prohibition upon any breach of the confidence between husband and wife, by declaring all confidential communications between them to be incompetent matter for either of them to expose as witnesses. * * * But the reason of the rule for excluding the confidences between husband and wife as incompetent matter to be deposed by either of them, though they may be competent witnesses to testify to other facts, is found to rest in that public policy that seeks to preserve inviolate the peace, good order, and limitless confidence between the heads of the family circle so necessary to every well-ordered civilized society. The matter that the law prohibits either the husband or wife from testifying to as witnesses includes any information obtained by either during the marriage and by reason of its existence. It should not be confined to mere statements by one to the other, but embraces

...