State v. Berlin
| Decision Date | 31 October 1868 |
| Parties | STATE OF MISSOURI, Respondent, v. DAVID BERLIN, Appellant. |
| Court | Missouri Supreme Court |
Appeal from St. Louis Court of Criminal Correction.
Cline, Jamison & Day, and Patrick, for appellant.
I. The statute requires the complaint to be sworn to by a competent witness. (Sess. Acts 1868, p. 269, § 20.) This complaint was made and sworn to by Ann Berlin, wife of David Berlin, the accused, who was an incompetent witness to testify against her husband in this prosecution against him for adultery or lewdly and lasciviously abiding, etc.; and hence incompetent, under the requirements of the law, to make oath to the information lodged against the accused. It is true the statute does not say, in so many words, that the party by whom the affidavit is made should be such a person as would be a competent witness in the cause; but the well-known and settled rule of law is that the lawful wife of a man is in no case competent to testify against him, or to make affidavits in any legal proceeding adverse to him, unless she be the immediate and direct object of the crime of misdemeanor complained of, and in cases of high treason. This doctrine is fully recognized in our Supreme Court in the case of Hannah Coleman v. The State, 14 Mo. 157. (Roscoe on Crim. Ev. 112-14; Commonwealth v. Easland, 1 Mass. 15; State v. Anthony, 1 McCord, 285; Rex v. Sergeant, 21 Eng. Com. Law R. 453.) The courts place the inadmissibility of the husband or wife to testify against each other on the broad ground of public policy, as well as that of identity of interest in most cases. The relation of marriage has long since been held too sacred to permit either party to appear in any legal proceeding against the other, except in a few excepted cases. And we know of no distinction between a wife going into court and swearing to a complaint against her husband, and getting on the stand as a witness to establish the charge before a jury. Both proceedings are alike prohibited by the policy of the law. In actions for adultery, bigamy, and the like, the wife is incompetent to testify on the grounds as above. (1 Greenl. Ev. § 339; 2 Stark. Ev. 400.) It has also been held that the wife is not competent to testify against the husband by his consent. (1 Greenl. Ev. 340; Sedgwick v. Watkins, 1 Ves. 49.) The same doctrine has been held in this country. (1 Wheeler's Crim. Cas. 479.) This doctrine has even been carried to the extent of excluding the husband and wife from being witnesses in cases where they were not parties, but for whose immediate benefit the suit was prosecuted.
II. The accused has been convicted of an infamous crime, and deprived of his liberty without the interposition of a grand jury, and in contravention of the Constitution of the United States and that of the State of Missouri. (Amend. Const. U. S., art. 5, 6; Const. Mo., art. 1, §§ 18, 24.) The twenty-fourth section of the first article of our constitution declares that: “No person can, for an indictable offense, be proceeded against criminally by information, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger, or by leave of court, for oppression or misdemeanor in office.” The crime of which the accused was found guilty was, at the time of the adoption of our constitution, an indictable offense, and could alone be proceeded against in that manner, and has always been considered by civilized nations an infamous crime, punished by the severest and most degrading penalties, and could alone be proceeded against by indictment at the time of adopting the constitution of Missouri, as was always the case from the earliest organization of this State. Now, does the constitution mean that those criminal prosecutions that the legislature may see fit to direct to be had by indictment after its adoption shall be proceeded in in that manner, while all such as it may direct to be had on information only may be prosecuted to conviction without the intervention of a grand jury? If so, then the legislature could direct every crime known to the criminal calendar to be so prosecuted; and it would be no violation of the constitution, because it would cease to be an indictable offense as soon as the legislature should direct otherwise. This provision in the constitution concerning indictment by a grand jury cannot be trifled with in that manner. It was intended as a bulwark of liberty to protect the people against all change and encroachments on their sacred rights and privileges, and to guard them, by the intervention of a grand jury, against oppressive and malicious prosecutions instituted by a vindictive and influential oppressor. Hence the proceedings in this cause are all unlawful, and his trial and conviction on information are in open violation of the constitution. (2 Story Const. 1781-90; 2 Coke's Inst. 51-2; 2 Kent, 10-13; 1 Blackst. Com. App. 304-5; Hoke v. Henderson, 4 Dev., N. C., 15; 10 Yerg. 71.)
Colcord and Mauro, for respondent.
I. The law does not require the information to be sworn to by “a competent witness.” The law provides that an information may be filed by the prosecuting or assistant prosecuting attorney, “or by any other person.” * * * “If filed by any other person, he shall swear to the same,” etc. The complaint in this case is filed by another person and is duly sworn to. (Adj. Sess. Acts 1868, p. 269, § 20.)
II. Ann Berlin is a competent witness. Certainly the record fails to establish the contrary; and this, in the absence of proof, is the presumption of the law.
III. The offense charged is not an indictable offense.
IV. The verdict is sufficient to support the judgment. The second count is the only one which charges a lewd and lascivious cohabiting, etc. The verdict pronounces the party guilty as there charged; that is, at the time, place, and with the person alleged. It is a complete bar to any further prosecution.
V. The case is fully made out, and the record shows no cause why the judgment should be reversed. (State v....
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State v. Williams
...but the letters produced by her and in her custody, purporting to have been written by defendant to her, were also inadmissible." In State v. Berlin, supra, a embraiing adultery and lascivious cohabitation the court speaking of the competency of the wife of the defendant to testify against ......
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State v. Williams
...a time when the marriage relation existed. State v. Shreve, 137 Mo. 1, 38 S. W. 548; State v. Ulrich, 110 Mo. 350, 19 S. IV. 350; State v. Berlin, 42 Mo. 572; Kelly's Criminal Law and Procedure (3d Ed.) § 270; 1 R. C. L. p.. 647. In State v. Ulrich, supra, speaking of a bigamy case, the cou......
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State v. Ulrich
...statute has changed it. The rule was based upon the soundest considerations of public policy growing out of the marital relation. State v. Berlin, 42 Mo. 572; Stein Bowman, 13 Peters (U.S.) 223; State v. Turner, 50 Miss. 351; State v. Turpin, 88 Mo. 337; Gibson v. Com., 87 Pa. 253; 9 Americ......
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State v. Dunbar
...that she was competent to sign the complaint against him, provided she did so voluntarily. The early case cited by appellant, State v. Berlin, 42 Mo. 572, does not conflict, but in principle sustains, what we have just said. That case was decided before any statute similar to present sectio......