State v. Robbins
| Decision Date | 06 January 1950 |
| Docket Number | 31034. |
| Citation | 213 P.2d 310,35 Wn.2d 389 |
| Parties | STATE v. ROBBINS. |
| Court | Washington Supreme Court |
Department 2
James J., Robbins, alias James Driscoll, was convicted in the Superior Court of King County, Chester A. Batchelor, J., of grand larceny of an automobile, and he appealed.
The Supreme Court, Hamley, J., reversed the judgment with instruction to grant a new trial and held that certain testimony of defendant's former wife was admissible but that certain other testimony was inadmissible under statute that defendant was not authorized by statute to cross-examine former wife concerning her alleged relations with another man while defendant was in the army, on ground that she had an interest in the prosecution, but that defendant was entitled to cross-examine her concerning such alleged relations in order to show her bias.
In prosecution for grand larceny of automobile, wherein defendant's former wife testified for the state defendant should have been permitted, for purpose of showing bias on part of former wife, to cross-examine her as to her alleged relations with another man while defendant was in the army and while she was still married to defendant.
George H. Crandell, Seattle, for appellant.
Charles O. Carroll, Burton S. Robbins, Seattle, for respondent.
At his trial upon a charge of grand larceny involving the theft of an automobile, defendant sought to exclude the adverse testimony of his former wife. When unsuccessful in this, he sought to cross-examine her with respect to her interest or bias. He was not permitted to do so. He was convicted, and judgment and sentence were entered. He has appealed.
The only question presented on this appeal is whether the trial court erred in regard to either of these rulings.
We will first consider whether the testimony of appellant's former wife ought to have been excluded.
The state called twenty-two witnesses to prove the crime charged. Their combined testimony tended to show that appellant, James J. Robbins, alias James Driscoll, had stolen a 1942 Pontiac automobile belonging to Merle D. Cohn; had altered the motor number to correspond to that of another Pontiac automobile owned by Ralph Alberthal, which had been totally wrecked; and had obtained a transfer of the title of the wrecked Pontiac to himslef, under the name of James Driscoll, and subsequently from James Driscoll to Jimmie J. Robbins. One of these witnesses, an employee of the state department of licenses, produced an application for a certificate of title for a Pontiac automobile, in which Ralph Alberthal was listed as the former owner and the motor number of the Alberthal automobile was given. This application was signed 'James Driscoll, By (wife) Mrs. June Driscoll.' The state then called appellant's former wife, Mrs. Geraldine Milne, to testify regarding this application. Over the objection of appellant, Mrs. Milne testified that she married appellant in November, 1946 (she misspoke in giving the year as 1946--the record shows that the marriage license was issued on November 23, 1945); that she divorced him in June, 1948; that, in August, 1946, while appellant waited in the automobile for her, she went to an office in the County-City building, in Seattle, and applied for license plates and a certificate of title for a Pontiac automobile (identifying the application, which had been introduced in evidence, as the one she had filed); that she signed the application 'James Driscoll, By (wife) Mrs. June Driscoll'; that Driscoll was not her real name, but was her father's name; that at this time she and 'James Driscoll' did not live at the address given in the application; and that she did not know whether 'James Driscoll' had ever acquired title to the automobile from Ralph Alberthal, named in the application as the former owner.
Whether this testimony was admissible depends upon the effect to be given to Rem.Rev.Stat. § 1214, paragraph 1, reading as follows: . (Italics ours.)
The testimony in question consists of a number of separate statements. Several of these can be dismissed from consideration, for the reason that they did not impart information which came to the witness by reason of any communication from her husband, but were facts at all times within her own knowledge. Of this kind was the testimony regarding the date of marriage and divorce; that 'Driscoll' was not the true name of the witness; and that at the time of the transaction she and 'James Driscoll' did not live at the address given in the application. The statement that the witness did not know whether Driscoll had acquired title to the automobile from Alberthal did not convey any information except her own lack of knowledge.
This leaves for consideration the admissibility of the statement that, while appellant waited in the automobile for her, the witness went to an office in the County-City building in Seattle and applied for license plates and a certificate of title for a Pontiac automobile, signing 'James Driscoll, By (wife) Mrs. June Driscoll.'
The statement that appellant was waiting outside in an automobile was testimony as to an act of the other spouse, as distinguished from testimony as to an oral or written communication. The privilege established by the statute does not ordinarily extend to testimony regarding the acts of the other spouse. Wigmore on Evidence, 3d Ed., vol. VIII, § 2337. For example, in a prosecution for the crime of rape, a divorced wife was permitted to testify that, on a certain occasion, she discovered her then husband in the act of sexual intercourse with her daughter, the complaining witness. State v. Snyder, 84 Wash. 485, 147 P. 38. Likewise, in a murder prosecution, a wife was permitted to testify that she discovered her husband dumping some object into a hole in which the deceased's body was found. Smith v. State, 198 Ind. 156, 152 N.E. 803.
However, there are circumstances under which testimony as to an act of the other spouse is clearly protected by the statutory privilege. Where the act is one which would not have been done by one spouse in the presence of, or with the knowledge of, the other but for the confidence between them by reason of the marital relation, testimony as to such act is inadmissible. See the very recent case of Menefee v. Commonwealth, 189 Va. 900, 55 S.E.2d 9, where the cases and authorities are discussed at length. The rule is stated as follows in 70 C.J., Witnesses, p. 388, § 520:
It might at first be supposed that appellant's act of waiting in an automobile in sight of all on a public thoroughfare, was not an act done in reliance upon the confidence established by the marital relation. He was apparently willing to be seen by the public, including acquaintances who might be passing by. The reason he was not afraid of being seen by the general public, however, was that it was unlikely that this would result in connecting appellant with the transaction then taking place inside the building. But his wife knew why he was waiting there, and was accordingly in a position to disclose appellant's connection with the transaction then in progress. It is obvious that he would not have waited in the automobile had he not relied upon the confidence between them by reason of the marital relation. The testimony of the witness as to appellant's act of waiting was accordingly inadmissible.
We reach a different conclusion with respect to the witness' testimony that she applied for license plates and a certificate of title. Disassociated from her further testimony that her husband was waiting outside in the car, her statement that she made this application was testimony concerning thewitness' own act. It was not testimony as to a communication between husband and wife.
If the witness had testified that she was authorized by her husband to file the application, that would have been testimony as to a communication. But she did not do so. It is true that the application, which had already been placed in evidence by another witness, was signed 'James Driscoll, By (wife) Mrs. June Driscoll,' and that Mrs. Milne testified that she signed in that manner. From this the jury was undoubtedly expected to...
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