United States v. Gwynne

• Decision Date: 06 January 1914
• Docket Number: 3-5.
• Citation: 209 F. 993
• Parties: UNITED STATES v. GWYNNE.
• Court: U.S. District Court — Eastern District of Pennsylvania

209 F. 993

UNITED STATES v. GWYNNE.

Nos. 3-5.

United States District Court, E.D. Pennsylvania.

January 6, 1914

John H Hall, Asst. U.S. Atty., and Francis Fisher Kane, U.S. Atty both of Philadelphia, Pa. Paul Freeman, of Philadelphia, Pa for defendant.

THOMPSON District Judge.

The defendant was indicted under the Mann Act (Act June 25, 1910 c. 395, 36 Stat. 825 (U.S. Comp. St. Supp. 1911, p. 1343)), for the illegal transportation of one Anna Ward from Philadelphia to Baltimore. After the commission of the alleged offense, the defendant and Anna Ward were lawfully married, and the marriage relation existed at the time of the trial. The district attorney offered the wife as a witness. Defendant's counsel objected on the ground of privilege. The objection was overruled, and the witness was permitted to testify.

If it had been shown that the offense was committed during the existence of the marriage relation, the present motion would be overruled upon the ground stated by Judge McPherson in his memorandum in the case of United States v. Rispoli (D.C.) 189 F. 271, viz.:

'That the offense charged was against the wife's person as really as if the defendant were charged with threatening to inflict physical violence, or of having actually struck her. In cases where the wife's personal rights were concerned, the exceptions to the husband's privilege should be benevolently regarded, and the offense in question was essentially within the spirit of the long-established rule that allows her to testify in protection or in vindication of her right to be secure in her person against threat or assault, even by her husband.'

The admissibility of testimony in criminal cases in the federal courts must be determined by the law of the states as it was when the courts of the United States were established by the Judiciary Act of 1789. United States v. Reid, 12 How. 361, 13 L.Ed. 1023; Logan v. United States, 144 U.S. 263, 12 Sup.Ct. 617, 36 L.Ed. 429.

It is too well established to be questioned that at the common law as applied prior to 1789 a wife is not a competent witness for or against her husband, and this is so, not on account of interest, but on the ground of public policy. Stein v. Bowman, 13 Pet. 221, 10 L.Ed. 129; Graves v. United States, 150 U.S. 121, 14 Sup.Ct. 40, 37 L.Ed. 1021.

A familiar exception to the well-known rule is in cases of violence upon her person, in which case the wife is a competent witness directly to criminate her husband, and it was because an offense under the Mann Act was held to come within the exception, where the wife was the injured party that she was permitted to testify against her husband in the Rispoli Case. The industry of the assistant district attorney has not enabled him to point to any authority for extending the exception to the common-law rule to an injury committed upon the person of the woman prior to her marriage. The question does not seem to have been raised in the federal courts, but the...