U.S. v. Meyers

• Decision Date: 02 September 1908
• Citation: 99 P. 336,14 N.M. 522,1908 -NMSC- 025
• Parties: UNITED STATES v. MEYERS.
• Court: New Mexico Supreme Court

99 P. 336

14 N.M. 522, 1908 -NMSC- 025

UNITED STATES v. MEYERS.

Supreme Court of New Mexico

September 2, 1908

Rehearing Denied Jan. 12, 1909.

Syllabus by the Court.

In an indictment for adultery under the federal statute(ActMarch 3, 1887, c. 397, § 3, 24 Stat. 635 [U. S. Comp. St. 1901, p 3636]) against a married man, it is not essential to allege that the woman with whom the offense is charged to have been committed was either a married or an unmarried woman.

[Ed Note.-For other cases, seeAdultery, Cent. Dig. §§ 2, 3;Dec Dig. § 1.^[*]

For other definitions, seeWords and Phrases, vol.1, pp 212-214.]

Section 3016, 3432, Comp. Laws 1897, andLaws 1901, p. 108, c. 58, andLaws 1907, p. 24, c. 26, relating to the same subject, construed, and held, that a wife is not admissible, over the husband's objection, as a witness against him in a prosecution for adultery under the federal statute.

[Ed. Note.-For other cases, seeWitnesses, Cent. Dig. §§ 159 1/2, 160;Dec. Dig. § 58. ^[*]]

Appeal from First Judicial District Court; before Justice Ira A. Abbott.

John Meyers, alias John Maus, was convicted of crime, and appeals.Reversed and remanded.

McFie, J., dissenting.

Hickey & Moore, for appellant.

D. J. Leahy, U.S. Atty.

PARKER, J.

The defendant was convicted of the crime of adultery under the federal statute, commonly called the "Edmunds-Tucker Act," which is in terms as follows: "That whoever commits adultery shall be punished by imprisonment in the penitentiary not exceeding three years; and when the act is committed between a married woman and a man who is unmarried, both parties to such act shall be deemed guilty of adultery; when such act is committed between a married man and a woman who is unmarried, the man shall be deemed guilty of adultery."ActMarch 3, 1887, c. 397, § 3,24 Stat. 635(U. S. Comp. St.1901, p. 3636).

1.A demurrer was interposed to the indictment on the ground that it failed to allege whether Rose Weil, the woman with whom the offense is alleged to have been committed, was either a married woman or an unmarried woman.The demurrer was overruled, and appellant assigns error.The contention of appellant is that the indictment in failing to charge that the woman was married failed to charge an offense under the first clause of the statute for the reason that adultery at common law consisted of unlawful sexual intercourse with a married woman.We are aware that by the older writers and adjudged cases such has been declared the law.But the better view and the greater weight of authority seems to be that adultery consists in the voluntary sexual intercourse of a married person with one not the husband or wife.Bish. Stat. Cr.(3d Ed.) § 654a, 656;1 Cyc. 952.Congress, in the second clause of the section above quoted, has enlarged this definition so as to include an unmarried man when his offense is with a married woman, and in the last clause has seen fit to exclude the unmarried woman when her offense is with a married man.This last clause adds nothing to consequence of such an act on the part of the married man.It is therefore apparent that the indictment sufficiently charges the offense, and the demurrer was properly overruled.

2.The wife of appellant was called, sworn as a witness, and, over his objection, testified to the fact of marriage and certain incriminating facts.This raises an important question.In 1889the Legislature passed section 3432,Comp. Laws 1897, which is as follows: "Hereafter the husband or wife of any defendant in any trial of a prosecution for crime before any court or officer authorized to hear or try said prosecution, shall be a competent witness to testify in favor of, but not against, such defendant: Provided, that such husband or wife shall be a competent witness to testify against any such defendant where the prosecution is for any unlawful assault or violence forcibly committed by the defendant on the person of such witness."Laws 1889, p. 13, c. 10, § 1.This remained the law until 1897, when the Legislature passed the following act:

"Section 1.Hereafter in the courts of this territory no person offered as a witness shall be disqualified to give evidence on account of any disqualification known to the common law, but all such disqualifications may be shown for the purpose of affecting the credibility of any such witness and for no other purpose: Provided, however," etc.

"Sec. 2.This act shall take effect from and after its passage and all laws and parts of laws in conflict herewith are hereby repealed."

SeeLaws 1897, pp. 45, 46, c. 22, compiled as section 3016,Comp. Laws 1897.

This act was re-enacted in 1901(Laws 1901, p. 108, c. 58) with a different proviso, not relevant to this discussion, and was re-enacted in 1907 in the same form as originally passed in 1897.

It is claimed that the act of 1897 worked a repeal of the act of 1889 by necessary implication, and we agree with the contention in so far as the two acts are in conflict.While the first act is specific and limited in its scope and object, and would ordinarily not be repealed by implication by a subsequent general statute covering the same subject, still in this case the subsequent act uses negative terms and assumes to provide an exclusive rule for all cases.Therefore the earlier act will be held to be repealed to the extent of any direct conflict between the two.But the act of 1889 deals with both a disqualification and a privilege at common law.At common law the husband or wife were disqualified to testify for each other upon the ground of identity of interest or bias of affection.The witness spouse was disqualified to the same extent and for the same and some additional reason as was the party spouse.1 Wig. Ev. §§ 600, 601, 603.But the privilege of one spouse to exclude the other from testifying against him and the privilege to refuse to so testify rest upon an entirely different principle.The privilege is founded upon the natural repugnance to compelling a husband or wife to be the means of other's condemnation.This common-law privilege has been by section 3432,Comp. Laws 1897, above quoted, converted into a statutory disqualification, and in either form the same was not abrogated by section 3016,Comp. Laws 1897; that section dealing only with common-law disqualifications.That part of section 3432 referring to the disqualification has been superseded by section 3016, and the subsequent acts above referred to, but the change is of no importance; they all being of the same effect.It follows that the court was in error in admitting the wife of defendant as a witness against him over his objection.

Other errors are assigned, but we do not deem it necessary to examine them.

For the reasons stated, the judgment of the lower court will be reversed, and the cause remanded, with directions to award a new trial; and it is so ordered.

MILLS, C.J., and POPE and MANN, JJ., concur.ABBOTT, J., having tried the case below, did not participate.

McFIE J. (dissenting).

I am unable to agree to the conclusion of the majority of the court that there was error in permitting the wife to testify in this case inasmuch as she did not testify to confidential communications of her husband.If the witness was disqualified, it must be under the common-law provision which made both husband and wife incompetent to testify for or against each other, except in cases of personal violence of one toward the other.The common law has been in force in this territory for many years, except in such respects as it has been supplanted by statutory enactments or unsuitable to our conditions.By ActMarch 3, 1887, c. 397,24 Stat. 635(U. S. Comp. St.1901, p. 3635), Congress set aside the common-law rule by declaring the wife a competent witness to prove her marriage in cases of "bigamy, polygamy or unlawful cohabitation."These terms have been defined in several cases, and the meaning given them is not broad enough to include adultery.It may be said that this act of Congress does not remove the common-law disabilities of the wife in adultery cases; but, admitting such to be the case, the Legislature is not thereby prohibited from enacting such legislation as will set aside the common-law disabilities of husbands and wives at its pleasure, as the Legislature of a territory...