People v. Quanstrom

• Decision Date: 04 October 1892
• Citation: 53 N.W. 165,93 Mich. 254
• Court: Michigan Supreme Court
• Parties: PEOPLE v. QUANSTROM.

53 N.W. 165

93 Mich. 254

PEOPLE v. QUANSTROM.

Supreme Court of Michigan

October 4, 1892

Error from circuit court, Muskegon county; ALBERT DICKERMAN, Judge.

Carl J Quanstrom, having been convicted of bigamy, brings error. Reversed.

De Long & O'Hara, for appellant.

A A. Ellis, Atty. Gen., for the People.

MCGRATH J.

Respondent was convicted of bigamy, and the sole question in the case is whether a complaint for bigamy may be made by the first wife. It is well established that one not a competent witness against the person charged is not competent to make a complaint against him, so that the real question is whether in a criminal action for bigamy, the first wife is a competent witness. Our statute, as amended in 1885, is as follows: "Sec. 7546. A husband shall not be examined as a witness for or against his wife without her consent, nor a wife for or against her husband without his consent, except in cases where the cause of action grows out of a personal wrong or injury done by one to the other, or grows out of the refusal or neglect to furnish the wife or children with suitable support, within the meaning of act number one hundred and thirty-six of the Session Laws of eighteen hundred and eighty-three, and except in cases where the husband and wife shall be a party to the record in a suit, action, or proceeding where the title to the separate property of the husband or wife so called or offered as a witness, or where the title to property derived from through, or under the husband or wife so called or offered as a witness, shall be the subject-matter in controversy or litigation in such suit, action, or proceeding, in opposition to the claim or interest of the other of said married persons, who is a party to the record in such suit, action, or proceeding; and in all such cases, such husband or wife who makes such claim of title, or under or from whom such title is derived, shall be as competent to testify in relation to said separate property and the title thereto, without the consent of said husband or wife who is a party to the record in such suit, action, or proceeding, as though such marriage relation did not exist; nor shall either, during the marriage or afterwards, without the consent of both, be examined as to any communication made by one to the other during the marriage, but in any action or proceeding instituted by the husband or wife, in consequence of adultery, the husband and wife shall not be competent to testify."

It is clear that the words "personal wrong or injury" are used in a restricted sense. Given their broadest signification there would be no necessity for the exceptions following that clause, and no necessity for the insertion of the italicized clause or amendment of 1885. To the general common-law rule excluding the testimony of husband and wife, there were exceptions which were allowed, from the necessity of the case, "for the protection of the wife in her life and liberty, and partly for the sake of public justice." This necessity is described by Lord MANSFIELD 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 be otherwise exposed, without remedy, to personal injury or brutal treatment." Bently v. Cooke, 3 Doug. (Mich.) 422. In 1 East, P. C. 455, Mr. East regards it as settled that "in all cases of personal injuries committed by the husband or wife against each other, the injured party is an admissible witness against the other." The text writers generally refer to the exceptions to the general rule of incompetency as embracing cases of personal injury. Whart. Crim. Ev. 393; 2 Tayl. Ev. � 1371. The instances given are where a man has been indicted for forcible abduction with intent to marry; for assisting at a rape; for attempting to poison; for maliciously shooting; or for an assault and battery. Mr. Taylor says: "For many years doubts were entertained whether a wife was or was not an admissible witness against her husband in cases where he was proceeded against, under the vagrant act, as a rogue and a vagabond for deserting her, and for causing her to become a charge to the parish. These doubts have now been resolved in the negative." 2 Tayl. Ev. � 1371. The amendment of 1885 to our own statute makes the wife a witness in proceedings for refusal to support. In People v. Carpenter, 9 Barb. 580, the husband was indicted for using criminal means-as subornation of perjury-to injure the wife in a proceeding for divorce, and the court held that there was no violence, no injury, no threat of injury, to her person, against which it was necessary to protect her; that she had abundant means of defense and redress in the judicial proceedings in which the fraud was practiced, and that she was therefore not a competent witness in the criminal proceeding. Citing People v. Chegaray, 18 Wend. 637; Den v. Johnson, 18 N. J. Law, 87; State v. Welch, 6 Me. 3; State v. Burlingham, 15 Me. 104. The language of the rule at common law was as broad as the language "personal injury" in our statute, and that language meant, and was held to mean, violence, either actual or constructive, to the person, and by a long line of decisions the wife was not allowed to give testimony in prosecutions for bigamy, or any other crime not involving personal violence or corporeal injury to her. The words "wrong" and "injury" are often used the one for the other. An injury to the person is a wrong, and a constructive injury to the person is also a wrong. A wrong is defined to be an injury, and an injury as a wrong. A personal wrong or injury is an invasion of a personal right; it pertains to the person, the individual. A cause of action growing out of a personal wrong is one designed to protect or secure some individual right. The right, as well as the wrong, must pertain to the person. It must be one that is purely personal in its character, and in no sense can the exception here be said to embrace public wrongs, which are personal only in the sense that they wound the feelings or annoy or humiliate, but inflict no injury upon the person. The last clause of the section was evidently added in view of the fact that, under another statute, the proceeding for adultery cannot be instituted except by the wife, and is therefore of a personal character.

Our statute is peculiar, and we have been unable to discover any adjudications upon a like statute. It is anomalous, also in that it embraces within one section the law governing the admissibility of the testimony of husband or wife in criminal proceedings, as well as civil cases. The authorities in those states where the question has arisen under statutes which although they differ, involve the same principle, are in conflict. In Iowa the statute provides that neither the husband nor wife shall be a witness against the other, except in a criminal proceeding for crime committed by one against the other. In State v. Sloan, 55 Iowa, 219, 7 N.W. 516, the court say simply that "in our opinion, if the defendant is guilty of bigamy, he committed a crime against the wife." State v. Hughes, 58 Iowa, 165, 11 N.W. 706, follows the Sloan Case, but in neither opinion is the question discussed. In Nebraska, under a similar statute, in Lord v. State, 17 Neb. 526, 23 N.W. 507, the husband was convicted of adultery. The court say: "The statute makes it an offense for the husband to desert his wife, and live and cohabit with another woman. If the husband is prosecuted for the offense, the prosecution certainly would be a criminal proceeding for a crime committed against the wife. In our own view, it was the intention of the legislature to include the offense here charged; and the ends of justice will be best subserved by permitting the wife to testify." In Overton v. State, 43 Tex. 616, the husband and wife had been separated, and the husband was charged with the theft of the wife's property. The statute is the same as that of Iowa. The court say: "This provision of the Code cannot, in our opinion, be properly given so broad an interpretation as to permit husbands and wives to testify against each other in prosecutions for offenses against their property. To give it such a construction would be to make a marked innovation upon a well-established common-law rule of evidence not required or warranted...