Parsons v. People

CourtSupreme Court of Michigan
Citation21 Mich. 509
Decision Date18 October 1870
PartiesElon G. Parsons v. The People

Heard October 5, 1870 [Syllabus Material]

Error to Branch circuit.

Parsons was charged on the complaint of William F. O'Rourke before a justice of the peace, with having committed the crime of adultery with one Sarah M. O'Rourke, she then being the lawful wife of the complainant. Subsequently the prosecuting attorney for Branch county filed an information against Parsons for the same offense, on which he was arraigned and pleaded not guilty.

On the trial, the prosecution produced as a witness Sarah M O'Rourke, the wife of the complainant, William F. O'Rourke. The defendant objected to her being sworn and examined as a witness against him, because she was the wife of the said complainant, and that the laws of the state of Michigan prohibit a wife from being a witness in any action or proceeding instituted by the husband in consequence of adultery. The circuit judge overruled the objection and allowed the witness to be sworn, to which the counsel for the defendant excepted.

The defendant was convicted, and after sentence he brings the record into this court by writ of error; the assignment of error being that the court below permitted the witness, Sarah M. O'Rourke, wife of the complainant, William F. O'Rourke, to be examined as a general witness against the respondent upon said trial, without his consent and against his objection.

Judgment affirmed.

C. B. Pratt and C. A. Stacy, for plaintiff in error:

1. At common law neither husband nor wife was admissible as a witness in a cause civil or criminal, in which the other was a party: 1 Greenl. Ev., § 334; Stein v. Bowman, 13 Peters 223; Davis v. Dinwoody, 4 Durnford and East, 678.

2. Even in a civil case, brought by the husband, for criminal conversation with wife, she could not be a witness for the husband, though it has been held in some of the states, she might be witness for him in such a case after a divorce from the bonds of matrimony: Dickerman v. Graves, 6 Cush. 308; Ratcliff v. Wales, 1 Hill 63.

3. But the question here is, What is the rule adopted by our statute? A statute is the declared will of the legislative power. If its language is plain and unambiguous, there is no room for construction, and when an act is conceived in clear and precise terms, when the sense is manifest, and leads to nothing absurd, there can be no reason to refuse the sense which it naturally presents: Jackson v. Lewis, 17 Johns. 477; Newell v. The People, 7 N. Y., 97; The People v. N. Y. C. R. R. Co., 13 N. Y., 78; Purdy v. The People, 4 Hill 384; 25 Me. 493.

Apply these principles to our statute: 2 C. L., § 5858; sec. 4339, as amended in 1861; Laws 1861, p. 168, sec. 1; sec. 4342; Laws 1861, p. 169, sec. 4. The law of 1869, page 150, amends this section but does not change it in this regard, but leaves it as by the law of 1861.

There may be three different actions or proceedings instituted by the husband or wife in consequence of adultery. 1. A bill for divorce. 2. A civil action on the case for damages. 3. A criminal prosecution for adultery, under sec. 5858, C. L., above cited.

The word institute, in the law of 1861, means the same thing as the word commence, in C. L., sec. 5858: 1 Bouvier Law Dictionary, 643.

Dwight May, attorney-general, for defendant in error:

I. The wife in this case was clearly a competent witness. (a) The statute refers to a civil action or proceeding where the husband and wife are parties against each other. The wife is in no legal sense a party--she is simply a witness called by the people to prove a fact. (b) Nor is the suit, in any legal sense, instituted by the husband against Parsons. While it is true that the complaint in this class of cases must be made by either the husband or wife (§ 5858 Comp. Laws), it does not follow that either institutes the suit or has any control over it. The people prosecute; they institute the suit in this class of cases the same as in every other class. There must be a complaint made by some person in every case before a warrant for arrest issues. The only difference in this class of cases is, that the statute names the person who must make the complaint. (c) Nor would the policy of the law exclude her from testifying in the case. All her disclosures are outside the marital relation. The only cases in our reports having any bearing upon this question are: People v. Thomas, 9 Mich. 314; Grimm v. The People, 14 Mich. 300.

II. Perhaps it may be said that the husband could not make a complaint against Parsons without including his wife in the same proceedings: Section 5858, Compiled Laws, is sometimes relied upon to sustain this position. Under a similar statute in Iowa it is expressly held that the husband may make complaint against the man committing adultery with the wife of the complainant: The State v. Wilson, 22 Iowa 364.

OPINION

Campbell, Ch. J.

Plaintiff in error, having been convicted of adultery, alleges as error that the wife of the complainant was allowed to give testimony against him.

He relies on the latter clause of section 4342 of the Compiled Laws (amended in Laws 1860, page 169, and Laws 1869, page 150), which declares that "in any action or proceedings, instituted by the husband or wife in consequence of adultery, the husband and wife shall not be competent to testify." In connection with this he refers to section 5858, which provides that "no prosecution for adultery shall be commenced but on the complaint of the husband or wife."

As the former section former part of a series of provisions intended to remove most of the old incapacities of witnesses, it may be best understood by considering the changes actually made, in the light of the old law.

By the common law neither husband nor wife could be examined as witnesses for or against each other when either was an actual party to the litigation, whether civil or criminal. Neither could, without the consent of the other, disclose matters learned through the confidence of the marriage relation, and there were many cases (and perhaps it was true in most) where neither could testify against the interests or reputation of the other, even when not a party. But this last rule was by no means universal, and in most collateral inquiries, where the judgment could not bind the husband or wife of the witness in any way, the general rule was that such evidence was not to be excluded. And when excluded it was usually because it was against the interest of the husband or wife of the witness, or calculated to create domestic discord. When the testimony merely told against the witness, and the other did not object, there was no exclusion generally, unless at the instance of the witness declining to answer privileged question: 1 Greenl. Ev., § 342; 1 Phil. Ev. (Edw. ed.), 84, 85, and notes. Without going at large into the cases concerning other facts, it is laid down with almost entire agreement that there is no legal impediment to the wife's proof that she has been guilty of adultery, when the question arises in bastardy cases. These decisions began early and have never been departed...

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12 cases
  • People v. Marble
    • United States
    • Supreme Court of Michigan
    • January 15, 1878
    ...(Morrisey v. People, 11 Mich. 341; Grimm v. People, 14 Mich. 306; Knowles v. People, 15 Mich. 413; Dixon v. People, 18 Mich. 84; Parsons v. People, 21 Mich. 509). One who is trial should not be prejudiced by evidence tending to show him guilty of another offense, Shaffner v. Com., 72 Penn. ......
  • United States v. Follette, 7689.
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. Western District of Pennsylvania
    • May 15, 1940
    ...R. R. Co., 268 Pa. 271, 110 A. 725; Davis' Appeal, 314 Pa. 357, 172 A. 399. 3 People v. Jung Qung Sing, 70 Cal. 469, 11 P. 755; Parsons v. People, 21 Mich. 509. 4 Hollandsworth v. United States, 4 Cir., 34 F.2d 5 N.Y.Code Cr.Proc. §§ 932, 483(2). ...
  • People v. Whitney
    • United States
    • Supreme Court of Michigan
    • June 4, 1895
    ...marriage or blood. The complainant is not a party to the suit, within the meaning of those provisions of the statute. Parsons v. People, 21 Mich. 509. 3. On the trial the prosecution offered in evidence a certified copy of the preamble and resolution of the board of supervisors, ordering pr......
  • State v. Wesie
    • United States
    • United States State Supreme Court of North Dakota
    • October 29, 1908
    ...innocent party. State v. Clemenson, 99 N.W. 139. Spouse of the married party to adultery may prosecute the unmarried participant. Parson v. People, 21 Mich. 509; Bayliss v. People, 9 N.W. 257; People Davis, 18 N.W. 362; Wilson v. Circuit Court, 62 N.W. 293; State v. Brecht, 42 N.W. 602. V. ......
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