People v. Marble

• Decision Date: 15 January 1878
• Citation: 38 Mich. 117
• Court: Michigan Supreme Court
• Parties: The People v. Emily U. Marble

38 Mich. 117

The People v. Emily U. Marble

Supreme Court of Michigan

January 15, 1878

Submitted October 10, 1877

Exceptions from Ingham.

Murder. The facts are in the opinion.

Exceptions overruled and the court proceeded to judgment on the verdict.

Attorney General Otto Kirchner for the People. Divorce removes the want of capacity to testify as between married persons Barnes v. Camack, 1 Barb 392; State v Jolly, 3 Dev. & Bat., 110; Ratcliff v. Wales, 1 Hill 63; Dickerman v. Graves, 6 Cush. 308; Herrick v. Odell, 29 Mich. 47.

J. C. Shields for defendant. A husband cannot testify against his wife after divorce, either at common law (Bish. Mar. & Div., § 624; Monroe v. Twistleton, App. to Peake's Ev.; O'Connor v. Majoribanks, 4 Mann. & Grang., 435; State v. Dudley, 7 Wis. 664; Cook v. Grange, 18 Ohio 526; Ratcliff v. Wales, 1 Hill 62), or under Michigan statutes (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 on trial should not be prejudiced by evidence tending to show him guilty of another offense, Shaffner v. Com., 72 Penn. St., 60. As to the definition of "reasonable doubt" see Bradley v. State, 31 Ind. 504; Anderson v. State, 41 Wis. 430; Jane v. Com., 2 Met., [Ky.], 30; Hamilton v. People, 29 Mich. 175. Being present at the commission of a crime does not necessarily make one an accomplice, 1 Russ. on Crimes, 627; Cannaughty v. State, 1 Wis. 159; People v. Knapp, 26 Mich. 112.

Graves, J. Campbell, C. J., and Cooley, J., concurred. Marston, J., did not sit in this case.

OPINION

Graves, J.

This is a case on exceptions certified before judgment. The defendant and one William Martin were charged as being present and aiding and abetting one Willard H. Chapman in the murder of Charles F. Ayres. The offense was laid November 12, 1876, at the town of Meridian, in Ingham county. July, 1877, she was tried separately and the jury convicted her of murder in the second degree.

The witness first offered by the people was John P. Marble. At the time of the homicide he was defendant's husband, but living separate from her and carrying on proceedings against her for a divorce from the bonds of matrimony. And a few days after the homicide, namely, December 29, 1876, the marriage was dissolved pursuant to his proceedings therefor, and the marital relation previously existing was entirely extinguished, and under these circumstances the counsel for the people claimed that he was as competent as any one to give evidence against the defendant except as to communications from one to the other. But the defendant objected that he was incompetent to testify to any thing transacted during the marriage.

The court overruled the objection and decided that Marble was competent to give evidence of the charges in the information. He was accordingly sworn and examined. There was no controversy about the fact that Ayres was killed in the evening or fore part of the night of November 12, 1876, and on the farm of witness, situated about five miles from Lansing. The witness had lived on this farm with the defendant for several years prior to February 24th, 1876, at which time, however, he left it.

There were family difficulties and he was of opinion the defendant was unfaithful to him. She had obtained a lease of the farm from him and assumed to manage and control it. At the time of the homicide he was living by himself at Lansing and she was occupying the farm, and the alleged principal, Willard H. Chapman, who was her son by a former marriage, and her alleged co-abettor Martin, with whom she was suspected of being criminally intimate, were staying there with her.

The witness swore that about eight o'clock in the evening of November 12th, he, with Ayres and one Morley, left Lansing together in a buggy for his farm; that the object was to get proof of adultery between defendant and Martin; that they left the horse and buggy in a piece of woods about one hundred and thirty-five rods from the house and went on foot into the orchard near the house and sat down under an apple tree. Referring to a diagram he described their course thereafter and pointed out and explained their movements to places nearer the house and also described the observed doings of Martin and young Chapman, and then stated that himself, Ayres and Morley retired about eight rods to an elm tree and there sat down on some blankets and buffalo robes; that whilst in this position he noticed defendant Chapman and Martin approaching and not more than fifteen feet distant; that they seemed to discover witness and his party, and that the latter instantly commenced getting up, "and quicker than you could think they were in front of us and fired on us. All I heard her say was, 'Here they are; fire '"

The counsel for defendant objected that it was not competent for this witness to testify to any thing which the defendant said or did on that occasion, on the ground that she was then his wife. The objection was overruled.

The witness further testified that the firing occurred immediately after defendant's order; that Chapman fired first, but the intervening time was only long enough to enable this to be distinguished; that Ayres was "shot dead" and Morley got up and started for the road.

The defendant's counsel objected to evidence of any acts of violence then and there done against Morley, and urged that according to the case shown by the witness the offense charged was completed by the death of Ayres. The court considered it admissible to give evidence of the entire transaction, not to show defendant guilty of Morley's murder, but to fix the character of the homicide of Ayres, which occurred in the same affray, and to show how and in what way the defendant was connected, if at all, with the death of Ayres; and the objection was overruled.

The witness then testified that immediately after Ayres was shot Morley got up and started for the road and defendant Chapman and Martin immediately pursued him and fired upon him; that after they had gone some two or three rods Morley turned and fired back; that witness had remained at the tree, but seeing the "three pitching into him"--Morley,--he went down to relieve Morley, and on getting nearly up with them the defendant said, "There's the old man; go for him," and that they thereupon fired at him two or three times; that Morley got away and started for the fence and witness turned to go the other way and was then struck by some one and immediately after was wounded by a pistol shot; that Morley reached the fence at one place and he at another, and hearing firing, witness started to go where Morley was, and getting within eight or ten feet he heard defendant say to Chapman, her son, "Will, here's the old man; let's go for him;" that witness went up to Morley and spoke to him, but got no reply; that the whole affray lasted perhaps a couple of minutes; that he thinks defendant fired at him, and further, that she fired two or three shots; that he had a loaded revolver but did not fire at all. On cross-examination he stated that previous to the night in question he, together with Ayres and Morley, had been about the house on several nights; that on the occasion in question both Ayres and Morley were armed with revolvers, each having a seven shooter; that the night was very dark, neither moon nor stars being visible.

This reference to the evidence and some of the surrounding facts will sufficiently unfold the case to afford an intelligible view of the objections thus far mentioned.

Now it cannot be positively admitted that if Marble had been sworn and examined subject to the authority of the common law, his previous state of marriage with the defendant would have been adequate ground for precluding him from testifying to those matters he was allowed to testify to. At the time of the trial no marriage relation existed, and for the entire period which commenced several months before the events of the fatal night and extended to the divorce, the relation was practically ended. There was no association and no confidential intercourse or communication. There was no amity. They lived apart in a state of mutual distrust and hostility, and the events described by Marble were open and aggressive acts against him and his associates Ayres and Morley, and according to his representation of the circumstances it appeared that the defendant and Chapman and Martin were acting in concert in waging the violence which was done. In giving evidence, so far as he was permitted, of what occurred on the night of the homicide, he revealed nothing which had come to his knowledge in consequence of the marriage relation, or which had arisen or been confided in the sacred confidence or privacy of married life. On the contrary, the facts he detailed were acts of force and violence directed against him and others, and in the presence of others.

There would seem to be some reason for contending that the case would not be subject to the general rule of the common law which will not allow divorced parties to testify against each other concerning matters which occurred during the continuance of the married state, but would be considered as standing on different ground and to be viewed as an exception. Chamberlain v. People, 23 N.Y. 85; Ratcliff v. Wales, 1 Hill 63; Coffin v. Jones, 13 Pick. 441; Dickerman v. Graves, 6 Cush. 308; Aveson v. Lord Kinnaird, 6 East, 188. But whatever force the point suggested may be supposed to possess, it is quite unnecessary to seek aid from it here.

The statute of 1861, as previously considered by this court affords a complete answer to the objections founded on the former relation between the witness...