Norman v. State

• Decision Date: 08 March 1913
• Citation: 155 S.W. 135,127 Tenn. 340
• Parties: NORMAN v. STATE.
• Court: Tennessee Supreme Court

155 S.W. 135

127 Tenn. 340

NORMAN v. STATE.

Supreme Court of Tennessee.

March 8, 1913

Appeal from Criminal Court, Davidson County; A. B. Neil, Judge.

W. C Norman was convicted of carnally knowing a female over the age of 12 and under the age of 21 years, and appeals. Reversed.

Allen & Allen and John E. Turney, all of Nashville, for appellant.

Walter W. Faw, Asst. Atty. Gen., for the State.

BUCHANAN J.

Norman has appealed from a judgment by which he was consigned to the penitentiary for a term of three years. This judgment was based upon the verdict of a jury under an indictment which charged that Norman did, unlawfully and feloniously, carnally know one Willie Ruby Scott, a female, on the ___ day of May 1911; Willie Ruby Scott being then and there over the age of 12 and under the age of 21 years.

Many assignments of error have been here made, but a consideration of one only is sufficient to dispose of the case.

Under our statute, chapter 36 of the Public Acts of the General Assembly of the year 1911, it is provided that "any person who shall carnally know or abuse a female under the age of twelve years shall, on conviction, be punished as in case of rape; and any person who shall unlawfully or carnally know a female over the age of twelve and under the age of twenty-one years shall, on conviction, be deemed guilty of a felony in all cases not falling under the statute relating to rape and shall be confined in the penitentiary not less than three nor more than ten years."

There are other provisions of this statute not necessary to be here set out.

Under the above statute, Norman was indicted and convicted as stated. On the 23d of September of the year 1911 Norman and Willie Ruby Scott became man and wife by a marriage ceremony duly solemnized. This marriage occurred after a prosecution had been set on foot, charging him with the offense of which he was convicted in this cause, and, from the evidence before us, it is clear that the marriage, so far as he was concerned, was entered into for the express purpose of shielding himself against prosecution for that offense. After this marriage, and before the trial in the court below, there was some financial contribution by the husband toward the support of the wife; but this was wholly insufficient in amount for her support and maintenance, and they never resided in the same house as husband and wife after marriage. During the time intervening between the marriage and trial she continued to reside with her mother and her stepfather and he resided elsewhere.

On the trial in the court below, the state offered the evidence of the wife as a witness against the husband, and over his seasonable objection and exception to her evidence, and notwithstanding her admission that she was his wife, the trial court allowed her to testify to the commission by him of the offense with which he was charged. It is clear from the record that, in the absence of her testimony, the state could not have made out its case against him; and the question here presented is: Was the court in error in admitting her evidence?

We have no legislation in this state relaxing, in criminal cases, the general rule of the common law that "one spouse may not testify against the other over the objection of the latter." Owen v. State, 89 Tenn. 698, 16 S.W 114. And the question here is whether this case falls within that general rule of the common law, or whether it falls within a recognized exception to that general rule.

In 1 Greenleaf on Evidence (16th Ed.) § 333c (pp. 493, 494), it is said that testimony by a husband or wife may involve any one or more of three independent principles, viz.:

(1) "One spouse may not testify for the other." (2) "One spouse may not testify against the other."

(3) "One spouse may not testify to confidential communications by the other."

It is there said, further, that under the first and third heads the exclusion is absolute--there are no exceptions--while under the second head (that invoked by plaintiff in error in the present case) "there are some well-established exceptions based on reasons of necessity."

The subsequent section (343) is devoted to said "exceptions." The latter section is as follows:

"To this general rule excluding the husband and wife as witnesses, there are some exceptions, which are allowed from the necessity of the case, partly for the protection of the wife of her life and liberty, and partly for the sake of public justice. But the necessity which calls for this exception for the wife's security is described to mean, 'not a general necessity, as where no other witness can be had, but a particular necessity, as where, for instance, the wife would otherwise be exposed, without remedy, to personal injury.' Thus, a woman is a competent witness against a man indicted for forcible abduction and marriage, if the force were continuing upon her until the marriage, of which fact she is also a competent witness; and this, by the weight of the authorities, notwithstanding her subsequent assent and voluntary cohabitation, for otherwise the offender would take advantage of his wrong. So she is a competent witness against him for a rape committed on her own person, or for an assault and battery upon her, or for maliciously shooting her (or for incest). She may also exhibit articles of the peace against him, in which case her affidavit shall not be allowed to be controlled and overthrown by his own. Indeed, Mr. East considered it to be settled that, 'in all cases of personal injuries committed by the husband or wife against the other, the injured party is an admissible witness against the other.' But Mr. Justice Holroyd thought that the wife could only be admitted to prove facts which could not be proved by any other witness."

Notwithstanding all that is said in the foregoing quotation from Mr. Greenleaf, it is manifest that in all the exceptions mentioned in his text the ground of the relaxation of the rule is the necessity for the protection of the wife from personal, or other, injury at the hands of the husband during the marital relation. Even the exception mentioned by him, where the wife was held to be a competent witness against a husband indicted for her forcible abduction and marriage to him; for, by his text, this exception is made to depend upon the fact that the force continued after the abduction and until the marriage, and the manifest ground of this exception is that such a marriage does not create the relation of husband and wife, she not being his wife de jure for lack on her part of consent to the marriage contract. And each of the other exceptions noted by the author in his text depends upon the necessity for the protection of the wife against violence, or other injury at the hands of the husband occurring during the marital relation.

The general common-law rule of the incompetency of either spouse over objection to testify against the other, or for the other, has long been recognized in this state.

In Goodwin v. Nicklin, 6 Heisk. 256, this court, in an opinion delivered by Mr. Justice Turney, held:

"Husband and wife are not competent witnesses for or against each other under the acts of the Legislature of the 13th of March, 1868, and of the 24th February, 1870. *** The common law places the rejection of such evidence upon the high ground of public policy, and because greater mischief or inconvenience would result from the reception than from the exclusion of such evidence. On this account, it is a general rule that the husband or wife cannot give evidence to affect each other, either civilly or criminally; for to admit such evidence would occasion domestic dissension and discord. It would compel a violation of that confidence which ought, from the nature of the relation, to be regarded as sacred, and it would be arming each of the parties with a means of offense which might be used for dangerous purposes. Sharswood's Starkie, Evidence, 39."

"We see, from this, that it is the policy to secure peace to families and society."

The above case was decided in 1871.

In Patton v. Wilson, 2 Lea, 105, this court, speaking through Mr. Justice Cooper, said:

"By the common law, parties were in general excluded from being witnesses for themselves, and the rule was extended to husband and wife; neither of them being admissible as witnesses in a cause, civil or criminal, in which the other was a party. The exclusion of husband and wife was founded partly upon the identity of their legal rights and interests, and partly on principles of public policy which lie at the basis of civil society. Co. Litt. 6b; Barker v. Davis, Rep. temp. Hardw. 264; Vowles v. Young, 13 Ves. 144."

The opinion of the court in the case last cited refers to and comments upon the following Tennessee cases: Brewer v. Ferguson, 11 Humph. 565; Kimbrough v. Mitchell, 1 Head, 450; State v. McAuley, 4 Heisk. 424; Goodwin v. Nicklin, supra.

In Patton v. Wilson, supra, the court, evidently referring to the acts of March 13, 1868, and February 24, 1870, further said:

"We have held in several cases that the recent acts, declaring that no person shall be incompetent to testify because he or she is a party to the record or interested in the issue, were not intended to affect the rule of evidence which excludes the husband and wife from being competent witnesses for or against each other. This rule, so far as it rests on public policy for the preservation of the harmony of the marital relation, continues in full force."

This case was decided in 1878.

Following the foregoing decisions by this court, chapter 200 of the Acts of the General Assembly of the year 1879 (the substance of which appears in sections 5596 and 5597 of Shannon's Code) was passed.

The...