Menefee v. Commonwealth

• Decision Date: 07 September 1949
• Citation: 55 S.E.2d 9,189 Va. 900
• Parties: MENEFEE. v. COMMONWEALTH.
• Court: Virginia Supreme Court

55 S.E.2d 9

189 Va. 900

MENEFEE.

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

Sept. 7, 1949.

Henry A. Menefee was convicted of robbery In the Circuit Court of Pittsylvania County, Kennon C. Whittle, J., and he brought error.

The Supreme Court of Appeals, Miller, J., reversed the judgment holding that the trial court's action in permitting the defendant's former wife to testify as to defendant's conduct shortly after the robbery was reversible error as a violation of the statute prohibiting disclosure of confidential communications between spouses.

Before HUDGINS, C. J., and GREGORY, EGGLESTON, SPRATLEY, BUCHANAN, STAPLES and MILLER, JJ.

C. Carter Lee, Virgil H. Goode, Rocky Mount, W. L. Joyce, Stuart, T. Keister Greer, Rocky Mount, for plaintiff in error.

Attorney General J. Lindsay Almond, Jr., Assistant Attorney General Henry T. Wickham, for Commonwealth.

MILLER, Justice.

On the night of May 24, 1947, about 9:00 o'clock p. m., a robbery was perpetrated by three or more persons at the home of Ernest Gilbert in Pittsylvania county. The crime was committed by force, violence and use of firearms. Ernest Gilbert was shot and killed, and his iron safe, which contained some money, was carried away in a motor vehicle. When located several months later, buried in a dump pile, it had been blown open and the contents removed. Henry A. Menefee was indicted for the rob bery, convicted and sentenced to ten years imprisonment.

At the trial, certain testimony of Ocie Wade Menefee, divorced wife of accused who was called as a witness on behalf of the Commonwealth, was admitted in evidence over his objections. He contends that this evidence consisted of and actually amounted to "communications privately made" by him to her while they were married, and was inadmissible under section 6212 of the Code of Virginia, 1942 (Michie).

Though the three sections, i. e., 6210, 6211 and 6212 of the Code, have to do with the privilege, qualification and competency of husbands and wives as witnesses for or against each other, only the latter section is directly and immediately pertinent to the question presented. It reads:

"Neither husband nor wife shall, without the consent of the other, be examined in any case as to any communication privately made by one to the other while married, nor shall either be permitted, without such consent, to reveal in testimony after the marriage relation ceases any such communication made while the marriage subsisted."

This common law rule, rendering inadmissible confidential communications between husband and wife, as now embodied in that statute, is not to be confused with the rule which disqualified a husband or wife, while such, to testify for or against each other. 2 Wigmore on Evidence, 3rd Ed., sec. 600 et seq.; 5 Jones on Evidence 2nd Ed., secs. 2128 and 2136, and 58 Am. Jur. "Witnesses", secs. 175 and 375. The latter disqualification or disability is now removed by statute except in specified instances. Code, sec. 6210.

The privilege against disclosure of communications privately made, --i. e., confidential communications between husband and wife, --is different in origin, scope, and purpose and survives termination of the marriage. 8 Wigmore on Evidence, 3rd Ed., secs. 2333 and 2334; 5 Jones on Evidence, 2nd Ed., sec. 2147.

The accused and Ocie Wade Menefee were legally married and living together attheir home in Franklin county on the date of the crime. Some months subsequent to the night of the robbbery, these parties separated and she obtained an absolute divorce from him on July 6, or 7, 1948. That was almost five months prior to the date of his trial and conviction.

The testimony given by her and complained of is as follows:

She said that about 3:00 o'clock p. m., on May 24, 1947, accused left their home near Rocky Mount in his automobile and did not return until sometime between 12 and 2:00 o'clock a. m. that night. Upon his arrival, he appeared sober, but somewhat nervous, though being nervous was not unusual for him. Just after entering their home, he placed a pistol on the mantel. On one occasion shortly after this date she observed him in their back yard "messing with the lid" to the trunk of the car with a razor blade. She also testified that she drove accused around the vicinity of Ferrum in Franklin county several times after the robbery. Her testimony to that effect follows:

"Q. Mrs. Menefee, this safe right here was found in the general neighborhood of Ferrum. I think you know where it was. State whether or not you took your husband up in that general vicinity after this robbery? A. Yes, I did.

"Q. You drove him in your car? A. Yes, sir.

"Q. How many times? A. Two or three. I am not sure."

She also identified a pearl-handle pistol which was offered in evidence at the trial as the one she had seen her husband place on the mantel upon his return home on the night of May 24, 1947. It was established by other witnesses that two bullets fired by the robbers during the commission of the crime became embedded in the wall of Ernest Gilbert's home. When removed, they, along with the pearl-handle pistol, were examined by an FBI ballistic expert. His testimony was to the effect that one of the bullets had been fired from that pistol.

Lt. Bingham, a member of the State Police, testified that on March 22, 1948, he located the safe, buried in a junk pile near Ferrum. It appears from the record that he was told of its whereabouts by Ocie Wade Menefee. The question and answer so indicating follows:

"Q. Who told you where the safe was? A. Mrs. Menefee told me that it was over in or under a junk pile on the mountain."

Though the above testimony was stricken out and the jury told to disregard the statements made by accused's wife to the officer, its detrimental effect no doubt continued.

It was also estabished by testimony of another FBI physics and chemical expert that upon thorough microscopic and spectroscopic examination and chemical tests, particles of paint found upon the inside fibre insulation of the automobile trunk lid that Ocie Wade Menefee had seen accused "messing with" were of the same ingredients and composition as the paint on the safe. He concluded and gave as his expert opinion that the paint particles found on the inside of the car trunk lid and the paint particles taken by him from the safe could have and most probably "originated from the same source."

It thus appears that information as to acts and conduct of her husband obtained by the wife during and solely as a result of the marriage relation existing between them and detailed by her at length as a witness constituted damaging circumstantial evidence.

He contends that his conduct, physical acts and appearance, such as returning home between 12 and 2:00 o'clock a. m. on the night of the robbery, placing the pistol on the mantel in his home, appearing sober, but nervous, scraping with a razor blade the inside of the trunk lid of the car standing in the yard of their home, and having his wife drive and accompany him on several trips to Ferrum, all of which information being so imparted to her privately and by reason of the existing marital relation and the confidence that such relation generated and should protect, constituted "communications privately made" and fall under the ban of the statute. In short, he asserts that the law of evidence and the purpose and intention of this statute, which treat, dealwith and preclude the use of confidential communications, i. e., "communications privately made", between husband and wife during coverture extend to and include all knowledge and information, however imparted, whether by acts, conduct, spoken or written words, which are prompted from one and become known to the other solely by virtue of the relationship of husband and wife.

The Commonwealth contends (1) that accused failed to comply with Rule 22 of this court, which says, "all objections to * * * the admissibility of evidence * * * shall state with reasonable certainty the ground of objection * * *, " and (2) the language used in section 6212 of the Code, "any communication privately made" means and is limited solely to written or spoken words between the spouses.

We find as a part of the record a stipulation of counsel which recites the objections made by accused to admission of the testimony, a passage from which reads:

" * * * the question of her testifying having been brought up in the Commonwealth's opening statement and objection having been made, and the question of the admissibility of her evidence was discussed at length; the defendant, by counsel, objecting to her being allowed to testify as to any communication, matter or fact which came to her knowledge concerning Henry A. Menefee, her husband, during marriage, the said Ocie Wade Menefee having secured a divorce from the defendant on July 6, 1948. Objection was made by counsel for defendant as to her testifying as to any matter or fact which came to her knowledge as the result of being the wife of the said defendant, during marriage, as to any communication between them, and that the communications were not limited to mere verbal acts, and further that she could not testify as to anything that occurred during the time that she was married.

The following language appears in the opinion of the trial judge, which opinion is expressly included as a part of the record:

"The wife had been granted an absolute divorce from the accused and her testimony did not concern 'Privileged Communications' as the term has been defined; she was not permitted to testify as to any conversation had with her husband concerning the robbery, but she was permitted to testify as to what she saw and to facts that she knew of her own knowledge; all of which came to her knowledge while the marriage subsisted and the facts testified to by the wife were undoubtedly gained by virtue of the fact that the parties were, at the time, living together as man and wife. (Emphasis added.)

"Cou...