State v. Feste

• Decision Date: 06 April 1939
• Docket Number: No. 31942.,31942.
• Citation: 285 N.W. 85,205 Minn. 73
• Parties: STATE v. FESTE.
• Court: Minnesota Supreme Court

285 N.W. 85

205 Minn. 73

STATE v. FESTE.

No. 31942.

Supreme Court of Minnesota.

April 6, 1939.

Appeal from District Court, Hennepin County; Frank E. Reed, Judge.

Henry L. Feste was charged with being the father of an illegitimate child born to the prosecutrix. From an order denying the defendant's blended motion to vacate and set aside the findings and conclusions of the trial court or for a new trial, the defendant appeals.

Order reversed and new trial granted.

Erling Swenson, of Minneapolis, for appellant.

Ed. J. Goff, Co. Atty., and Lucien A. Selover, Asst. Co. Atty., both of Minneapolis, for the State.

GALLAGHER, Chief Justice.

Appeal from an order denying defendant's blended motion to vacate and set aside the findings and conclusions of the trial court or for a new trial.

On October 18, 1937, Grace Eliason (now Grace Eliason Feste) filed a complaint in the municipal court of Minneapolis against Henry L. Feste, defendant, charging him with being the father of an illegitimate child born to her on the 26th day of the previous September. A week later defendant appeared in municipal court, waived preliminary examination, and was released on his own recognizance for appearance at the next general term of the district court of Hennepin county. On November 24 following, he married complainant. The action was tried on December 9, and the state called Mrs. Feste as a witness. She was permitted to testify although the defendant refused to consent thereto, and his objections to the admission of her testimony on the statutory ground that a wife cannot testify against her husband without his consent [2 Mason's Minn.St.1927, § 9814 (1)] were overruled. At the close of plaintiff's case defendant's motion for dismissal was denied. Subsequently the court made findings of fact and conclusions of law wherein it was adjudged and decreed that defendant was the father of the child. The only basis therefor was the testimony of Mrs. Feste, the wife. On September 8, 1938, the defendant moved for a new trial on the grounds that this testimony was improperly admitted and that the decision, findings of fact and conclusions of law made and filed by the court are contrary to law. An order denying this motion was entered, from whence defendant appeals. 2 Mason's Minn.St.1927, § 9814 (1), provides: "A husband cannot be examined for or against his wife without her consent, nor a wife for or against her husband without his consent, nor can either, during the marriage or afterwards, without the consent of the other, be examined as to any communication made by one to the other during the marriage. But this exception does not apply to a civil action or proceeding by one against the other, nor to a criminal action or proceeding for a crime committed by one against the other, nor to an action or proceeding for abandonment and neglect of the wife or children by the husband."

This statute codifies the common law. See State v. Armstrong, 4 Minn. 335, 4 Gil. 251; State v. Frey, 76 Minn. 526, 79 N.W. 518, 77 Am.St.Rep. 660. To determine its application to the instant case, the reasons for the rules which it embodies must be ascertained.

The family is the basic unit of society as the cell is of the body. To cause strife between the parties to a marriage contract is to undermine this institution and thus to weaken the entire social structure. Courts and legislatures have recognized the burden which antagonistic interests impose upon the intimate relations of husband and wife and the harm to the public which results from marital discord and have, as a general rule, refused for this reason to permit one spouse to testify against the other without the latter's consent. See Revised Statutes 1851, c. 95, § 53, p. 478; 1 Greenleaf, Evidence, 16 ed. § 333c; McKelvey, Evidence, 3rd ed. § 221; 5 Jones, Evidence, 2d ed. §§ 2128, 2129. It may be contended that the union of the mother of an illegitimate child and a man who denies her claim that he is the father will not be a harmonious association in any event. But we are of the opinion that the fact that wedlock is entered into under unfavorable circumstances affords additional reason why it should not be subjected to further strain. Speculation concerning instances where the parties do not live together as husband and wife is unnecessary since the settled case which we have been called upon to consider reveals no such state of affairs. Consideration of the effect of our decision on the interests of the child is also beside the point since if the testimony of the wife was admissible it was, in view of 2 Mason's Minn.St.1927, § 9814 (1), only because of a wrong against her.

As our statute indicates, the general rule does not apply to civil actions or criminal offenses by one mate against the other. As was said in State...