State v. Jaques, 11903

Decision Date16 August 1977
Docket NumberNo. 11903,11903
Citation256 N.W.2d 559
PartiesSTATE of South Dakota, Plaintiff and Respondent, v. Richy JAQUES, Defendant and Appellant.
CourtSouth Dakota Supreme Court

Peter H. Lieberman, Asst. Atty. Gen., Pierre, for plaintiff and respondent; William J. Janklow, Atty. Gen., Pierre, on the brief.

Michael A. Lyons, Sioux Falls, for defendant and appellant.

MORGAN, Justice.

The principal issue on this appeal is whether or not a defendant in a criminal prosecution for arson can effectively silence the state's star witness against him by marrying her before trial and thereby preclude the state from calling her as a witness or using her testimony given at a preliminary hearing. The state concedes that she cannot be called as a witness without her husband's consent. We hold that her previous testimony is likewise inadmissible, and reverse.

The defendant was accused of arson after investigation was made of a fire that occurred in Sioux Falls in the early morning hours of July 26, 1975. The fire was in a home rented by one Illa Hammond wherein the defendant was also residing. At the defendant's preliminary hearing Illa Hammond was called as a witness on behalf of the state and testified that she and the defendant had had an argument earlier that night, that she had called the police and complained about the defendant and then fled to the home of a friend. She further testified that she received a telephone call from defendant threatening future retaliation in the form of burning everything she had if she ever called the police on him again. The conversation ended with the cryptic statement "I've got to get out of here, the house in on fire."

Subsequent to the preliminary hearing and prior to the trial the defendant and Illa Hammond were married thereby formalizing the arrangement under which they had been living for some two years during which period the defendant had fathered a son by Miss Hammond.

Prior to the trial, anticipating that the defendant would object to the state introducing any evidence against him by calling his now wife to testify, the state made an oral pretrial motion to endorse on the information the name of the court reporter who transcribed the preliminary hearing for the purpose of foundational testimony for introducing the transcript of the preliminary hearing testimony of Illa Hammond, now Illa Jaques. The state's attorney asked for a ruling whether this testimony of Illa Hammond would be admissible and stated that it was absolutely critical to the state's case and if ruled inadmissible the state would have no alternative but to dismiss the case. Both sides filed briefs and the court by letter ruled that the preliminary hearing testimony was admissible because the witness was not available, although no formal order to that effect was ever entered. At the trial, out of the presence of the jury, the state's attorney asked the defendant if he planned to exercise the privilege against his wife's testifying against him. Defense counsel replied that they would not give consent whereupon the trial judge ruled the state could introduce the preliminary hearing testimony because the witness was unavailable.

Because the defense counsel refused to stipulate to foundation for the transcript the state moved and was granted leave to endorse the name of the court reporter to the information. In the course of the trial the reporter was called as a witness and laid the foundation for the introduction of the transcript of the preliminary hearing, particularly the testimony of Illa Hammond. Defense counsel then, outside the presence of the jury in the court chambers, objected to proceeding with the reading of the testimony on the basis that there was no proper evidence or foundation showing that Illa Hammond is unavailable or that Illa Hammond and Illa Jaques are one and the same person. In the course of the discussion of the exercise of privilege the court stated:

"Okay. And I am going to, of course, allow the transcript to be read eventually. That is my present feeling and the same as we did this morning on a question and answer. I realize you have objected to it and, certainly, you do have a standing objection in the record to that point."

The court then went on to discuss the question of the foundation as to identity. The state remedied the lack of identity foundation by asking and receiving leave to endorse on the information the name of a police officer who, when called to testify, testified that he was related to Illa Hammond and knew as a matter of family history that she was now Illa Jaques. After the officer testified the state again renewed the request to introduce the testimony of Illa Hammond via preliminary hearing transcript which the defense counsel again objected to on the basis of identity not being established. Objection was overruled and the state's attorney then advised the court that he had one of his deputies present, that he had marked as that portion of the preliminary hearing transcript testimony of Illa Hammond and marked it as Exhibit 9 and would like to have the deputy state's attorney refer to this as she is reading the answers to the questions which I propound to her. To this defense counsel stated he had no objection. The deputy state's attorney then took the stand and read into the evidence the testimony of Illa Hammond.

At the conclusion of the trial the jury returned a verdict of guilty of arson and the court entered sentence imposing a five-year prison sentence. From this judgment and verdict the appeal is taken. The principal error urged by the appellant is the admission of the preliminary hearing testimony of Illa Hammond Jaques as a violation of the defendant's privilege. Secondarily they argue that the court should have granted a motion to dismiss based upon insufficiency of the evidence.

Under South Dakota Law "no person offered or called as a witness in any action or special proceeding in any court or before any officer or person having authority to examine witnesses or hear evidence shall be excluded or excused from testifying * * * because such person is a husband or wife of a party thereto * * * except as provided in § 19-2-1 to 19-2-5, inclusive." 1 The section referred to above, 19-2-1, reads in essence:

"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 afterward, be without the consent of the other examined as to any communication made by one to the other during the marriage; * * * "

The statute goes on to list certain exceptions which the parties agree are not applicable here. This statute actually sets forth two common law doctrines of privilege. The first, being the doctrine of incompetency to testify either for or against the other spouse in any proceeding, civil or criminal, which rule is based partly on the common law doctrine that husband and wife are but one person and consequently that their interests are identical and partly upon the grounds that public policy demands that those living in a marriage relation should not be compelled or allowed to betray the mutual trust and confidence which such relation implies. The second doctrine is in the nature of a privilege of either against the other's disclosure of communications. Professor Wigmore stresses the distinction between the privilege for communications and the privilege against adverse marital testimony, one of which distinctions is appropriate to the rules as laid down in our statute, that is that the rule of marital disqualification prohibits the spouse's adverse testimony regardless of the source of knowledge while the privilege against communications covers only knowledge obtained through the confidence of the marriage relation. 2 It is the first privilege, the privilege of marital disqualification that we are dealing with in this case. The rule and soundness of the reasons advanced for it have long been condemned by commentators, has been abrogated by statutes, and current decisions indicate a trend to narrow the implication of the rule of incompetency insofar as possible under prevailing statutes. 3

Our problem here does not lie in whether the rule is applicable or not because the state has conceded that under the statute and under our decisions Illa Hammond Jaques could not be called to the stand and required to testify against her husband without his consent. At issue here is the state's rather novel resolution of the problem created by the marriage of the defendant and the state's star witness, that is, the introduction of her preliminary hearing testimony given before she became Mrs. Jaques on the theory that she was now an unavailable witness and therefore her prior testimony was admissible.

The remedy the state urged on the trial court was characterized as one of the exceptions to the hearsay rule that evidence may be received in pending cases in the form of written transcript or oral report of witness's previous testimony if the witness is presently unavailable and the former testimony was given under circumstances affording the opponent an adequate opportunity to cross-examine.

This court has previously ruled that:

"The testimony given by a witness on the preliminary examination or on a former trial is not admissible as substantive evidence, unless it is satisfactorily shown by the side offering the evidence that such an examination or trial was had in a judicial tribunal; that the witness was sworn and testified; that accused was present and had an opportunity for cross- examination; that the parties and the issues were substantially the same as in the case on trial; and that the witness has since died, or has become insane or has left the state permanently or for an indefinite time, or is unable to attend and testify on account of sickness or physical disability, or after due...

To continue reading

Request your trial
7 cases
  • Com. v. DiPietro
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • September 19, 1977
    ...the prevailing view in many other jurisdictions and the views expressed by recognized legal scholars on the subject. Cf. State v. Jaques, S.D., 256 N.W.2d 559 (1977). Both the Uniform Rules of Evidence (1974), and the Federal Rules of Evidence, the latter of which became effective on July 1......
  • People v. Hamacher, Docket No. 81202
    • United States
    • Michigan Supreme Court
    • March 30, 1989
    ...Ins. Co. v. Koonce, 233 Ala. 265, 268-269, 171 So. 269 (1936); State v. Fredette, 462 A.2d 17, 25-26 (Me.1983). See also State v. Jaques, 256 N.W.2d 559, 563 (S.D.1977).8 At p. 59.The dissenting opinion relies on statements in State v. Clark, 296 N.W.2d 372, 373 (Minn.1980).9 The decisions ......
  • Maynard v. Heeren
    • United States
    • South Dakota Supreme Court
    • March 27, 1997
    ...citations). 2 ¶8 Every privilege limits the evidence available in the judicial fact-finding process. State v. Jaques, 256 N.W.2d 559, 564 (S.D.1977) (Zastrow, J., concurring specially). This disadvantage is balanced against the public policy argument in favor of the The physician-patient pr......
  • Schutterle v. Schutterle
    • United States
    • South Dakota Supreme Court
    • November 17, 1977
    ...created by our statutes. See Hogue v. Massa, 80 S.D. 319, 123 N.W.2d 131; Schaffer v. Spicer, 88 S.D. 36, 215 N.W.2d 134; State v. Jaques, S.D., 256 N.W.2d 559, and we conclude that the same rule of liberal construction should be applied in favor of the attorney-client privilege created by ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT