Shores v. United States

• Decision Date: 10 June 1949
• Docket Number: No. 13743.,13743.
• Citation: 174 F.2d 838
• Parties: SHORES v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

174 F.2d 838 (1949)

SHORES v. UNITED STATES.

No. 13743.

United States Court of Appeals Eighth Circuit.

June 10, 1949.

George F. Edwards, Texarkana, Ark. (Ted Goldman, Texarkana, Ark., with him on the brief), for appellant.

Charles A. Beasley, Jr., Assistant United States Attorney, Fort Smith, Ark. (R. S. Wilson, United States Attorney, and David R. Boatright, Assistant United States Attorney, Fort Smith, Ark., with him on the brief), for appellee.

Before SANBORN, WOODROUGH, and JOHNSEN, Circuit Judges.

JOHNSEN, Circuit Judge.

Appellant was convicted by a jury, on five counts, of knowingly having transported his wife in interstate commerce for the purpose of prostitution, and of thereby having violated section 2 of the White Slave Traffic Act, Mann Act, 18 U.S.C.A. § 398, now § 2421.

The written statement which appellant gave the officers after he was taken into custody is a sordid narrative — the revolting tale of a man 26 years old, previously a taxicab driver, marrying a girl, not yet 17 years of age, and using her immediately and continuously thereafter, for almost eight months, until his arrest, to provide him with his livelihood, by having her sell her body, at hotels and tourist camps, as he degradingly moved her from city to city and across state lines.

The portions of his statement which dealt with the prostitutional transportations preceding those involved in the indictment were received in evidence on the issue of his motive or intent in relation to the prosecuted occasions. Cf. Kinser v. United States, 8 Cir., 231 F. 856, 860, 146 C.C.A. 52; Baish v. United States, 10 Cir., 90 F. 2d 988, 990; Cohen v. United States, 5 Cir., 120 F.2d 139, 140.

Appellant offered no evidence on the trial. His principal contention for reversal is that the court erred in permitting his wife, over his objection, to testify against him. The wife testified to the various transportations which appellant had made of her and to her practicing of prostitution at their different destinations. In the preliminary interrogation, which appellant's counsel was permitted to make of her, when the Government called her to the stand, she stated, however, in answer to leading questions, that appellant had not used any violence on her or compelled her to do anything against her will, and, when asked directly whether she desired to have appellant prosecuted and if she wished to testify against him, she replied, "I do not."

1. It is appellant's contention that exclusion of the wife's testimony was required by Johnson v. United States, 8 Cir., 221 F. 250. That case, decided in 1915, reversed a conviction under the Mann Act, because the accused's wife, who had been the subject of the transportation charged, was permitted to testify against him. The decision was rested upon the ground, as stated in the opinion, that "At common law the rule was that neither husband nor wife could testify against each other" and that the incompetency of the wife to be a witness against her husband "has not been changed * * * by statute in a case like the present." 221 F. at page 251.

The old common law rule, as stated in Stein v. Bowman, 13 Pet. 209, 222, 10 L.Ed. 129, was that, "except in cases of violence upon her person," a wife is incompetent to testify criminally against her husband. Wigmore points out that the use of the term "incompetent," in thus stating the rule, is indiscriminating and inaccurate, in that the actual concept underlying the exclusion of such testimony was not one of absolute disqualification, such as in the case of the early incompetency of one spouse to testify for the other, but simply one of marital privilege, which could be asserted by either and to which the court was required to give effect unless it was waived by both. 8 Wigmore on Evidence, 3d Ed., § 2242. Cf. also Tinsley v. United States, 8 Cir., 43 F. 2d 890, 896.

But without regard to the nature of the underlying concept, the rule in any event, as noted, was admittedly subject to the exception of cases of violence by the husband against the wife. The Johnson case, supra, did not make mention of this exception, and it probably must be assumed that the court viewed the term "violence upon her person" as being entitled only to a literal signification and as not extending to a violation of the Mann Act unless the wife's transportation was the result of physical coercion.

That view, however, could hardly have taken into account that other federal courts had previously held that the term "violence," as used in the exception, was entitled to be given the signification of any personal wrong done the wife, which was either physically or morally injurious to her, and so included any transportation of her in violation of the Mann Act, and that the Supreme Court had refused to grant certiorari to review this holding. See Cohen v. United States, 9 Cir., 214 F. 23, certiorari denied 235 U.S. 696, 35 S.Ct. 199, 59 L.Ed. 430; United States v. Rispoli, D. C.Pa., 189 F. 271; United States v. Gwynne, D.C.Pa., 209 F. 993. As the opinion in the Cohen case expressed it, "the personal injury to a wife which permits the admission of her testimony against her husband, within the exception recognized at the common law, * * * is not, confined to cases of personal violence, but may include cases involving a tort against the wife, or a serious moral wrong inflicted upon her, and * * * in a case of the prosecution of a man for bringing his wife from one state to another with intent that she shall practice prostitution, in violation of the White Slave Act, his act in so doing is such a personal injury to her as to entitle her to testify against him." 214 F. at page 29.

The Cohen case had been shortly followed by United States v. Bozeman, D.C.Wash., 1916, 236 F. 432; by Pappas v. United States, 9 Cir., 1917, 241 F. 665; and by Denning v. United States, 1918, 5 Cir., 247 F. 463.

All these accordant decisions were precedent of the emancipating declaration made by the Supreme Court in 1933, in Funk v. United States, 290 U.S. 371, 54 S.Ct. 212, 78 L.Ed. 363, 93 A.L.R. 1136, that the federal courts were not to regard themselves as being fettered by the limitations of the criminal evidence rules of the common law as they might have existed at some particular time; that in the initial adoption of common law rules for the federal judicial system there equally was intended to be an adoption of those principles of extension and growth which always had been regarded as being inherent in the common law system and which in fact constituted the genius of that system; that the fact that a certain rule of evidence had been applied at the time the federal courts were established, or when a particular State was admitted to the Union, did not therefore give rise to a fixed limitation until such time as a change should be made by legislative action; that the courts at all times, in the application of any rule of evidence, should give heed to the general currents of legal thought, judicial opinion, and legislative action in the particular field; and that they should continuously "declare and effectuate, upon common-law principles, what is the present rule upon a given subject in the light of fundamentally altered conditions" and on the basis of "present day standards of wisdom and justice." 290 U.S. at pages 383 and 384, 54 S.Ct. at page 216, 78 L.Ed. 363, 93 A.L.R. 1136.

Mr. Justice (later Chief Justice) Stone restated the doctrine of the Funk case, in Wolfle v. United States, 291 U.S. 7, 12, 54 S.Ct. 279, 78 L.Ed. 617, decided at the same term, in the terse language, that rules of criminal evidence should be "governed by common-law principles as interpreted and applied by the federal courts in the light of reason and experience." This language was incorporated into Rule 26 of the subsequently promulgated Federal Rules of Criminal Procedure, 18 U.S.C.A., where it was provided that "The admissibility of evidence and the competency and privileges of witnesses shall be governed, except when an act of Congress or these rules otherwise provide, by the principles of common law as they may be interpreted by the Courts of the United States in the light of reason and experience." The Notes of the Advisory Committee added the following comment: "This rule contemplates the development of a uniform body of rules of evidence to be applicable in trials of criminal cases in Federal courts. * * * The rule does not fetter the applicable law of evidence to that originally existing at common law. It is contemplated that the law may be modified and adjusted from time to time by judicial decisions."

Since the liberating mandate of the Funk case, all the decisions in which the question here involved has arisen have held that, under present-day concept of the common law exception to the incompetency of a wife's testimony against her husband, his transportation of her in interstate commerce for the purpose of having her engage in prostitution is such a personal wrong against her as to make her testimony admissible in a prosecution of him under the Mann Act. See United States v. Mitchell, 2 Cir., 137 F.2d 1006, reaffirmed 138 F.2d 831, certiorari denied 321 U.S. 794, 64 S.Ct. 785, 88 L.Ed. 108, rehearing denied 322 U.S. 768, 64 S.Ct. 1052, 88 L.Ed. 1594; United States v. Williams, D.C. Minn., 55 F.Supp. 375; Levine v. United States, 5 Cir., 163 F.2d 992; Hayes v. United States, 10 Cir., 168 F.2d 996. Cf. also Wilhoit v. Hiatt, D.C.Pa., 60 Supp. 664.

Yoder v. United States, 10 Cir., 80 F.2d 665, undertook to go even further and to declare generally that a wife's testimony may be received against her husband in a criminal case of any nature, subject only to the incompetency of any communications made within the field of marital privilege, where that privilege is asserted. Thouvenell v. Zerbst, 10 Cir., 83 F.2d 1003, approved and repeated this broad view. These two cases involved violations of the Mann Act, so that the testimony...