United States v. Mitchell
Decision Date | 08 November 1943 |
Docket Number | No. 318.,318. |
Parties | UNITED STATES v. MITCHELL. |
Court | U.S. Court of Appeals — Second Circuit |
Albert C. Gilbert, of New York City, for appellant.
George Kennan Hourwich, of New York City, amicus curiae for appellant.
John C. Hilly, Asst. U. S. Atty., of New York City (Howard F. Corcoran, U. S. Atty., of New York City, on the brief), for appellee.
Before L. HAND, CLARK, and FRANK, Circuit Judges.
This is an appeal by William Mitchell from his conviction by a jury of the crime of transporting his own wife in interstate commerce for the purpose of prostitution and debauchery, in contravention of the White Slave Traffic Act of 1910, 18 U.S. C.A. § 398. The wife testified at length against him; and although there was some corroboration from others of certain details of her testimony, it is quite obvious that no conviction could be had without her evidence. The errors pressed on this appeal are that her testimony was not legally admissible against him, and that the court erroneously refused to allow him to dismiss his counsel during the trial.
The revolting details of the testimony given by the wife need not be stated here further than is necessary to set forth the legal question involved. She said that she met defendant during February, 1941, at a cafeteria in San Diego, California, where she was employed as a waitress, that she went out with him soon thereafter, and that on the third or fourth occasion she had intercourse with him. A short time thereafter he asked her to go out to work for him as a prostitute, since he needed the money, telling her of a certain hotel where he had made all the arrangements for her, and later actually bringing her to another place, where he again asked her to work as a prostitute. Each time she refused. He was arrested in April, 1941, for contributing to the delinquency of a minor, the charge being based on the fact that he had stayed in a hotel room with her overnight. As she would not testify against him, the charge was dismissed. He was, however, indicted for possession of marihuana, and was convicted. The night before his arrest he again urged her to go to work as a prostitute at the places previously suggested. While in jail he wrote her that he needed $100 for a lawyer and "You know what to do." Upon his release in June, 1941, he went to Albuquerque, New Mexico, since he had been directed by the court to leave the state when his sentence was served. In October, 1941, in response to a letter from defendant, she went to Albuquerque, where they were married. She then got together a total of $800 of her own money, which she gave to defendant; and they left for New York, arriving on October 21, 1941.
After two weeks in New York, defendant told her that she would have to go out to hustle for him, as he needed money. There follows a considerable record of various urgings and threats on his part, and refusals on hers, in the presence of assisting third persons or otherwise, as chance seemed to determine, with suggestions of specific places where she might operate, as a result of which she eventually capitulated and worked at several places, which she named, including, among others, two specific hotels. During the time that she worked as a prostitute, defendant took all the money she earned, amounting to some $2,000. He was arrested on February 9 and convicted on March 17, 1942.
In considering the admissibility of the wife's testimony, distinction must be made between a general privilege prohibiting testimony by one spouse against another and the special privilege as to confidential communications. The latter seems quite thoroughly recognized and approved in this country, 8 Wigmore on Evidence, 3d Ed. 1940, §§ 2332-2341,1 whereas the former, while also widely recognized except where modified by statutes or limited by exceptions, has been strongly criticized as of obscure origin, uncertain rationalization, and unfortunate results in limiting judicial search for the truth. Wigmore, id. §§ 2227-2245, especially § 2228, quoting Jeremy Bentham's devastating blasts at the rule, and § 2245, expressing the hope that "before the centenary of Bentham's death, no vestige of the privilege will remain." It is omitted from the American Law Institute's Model Code of Evidence, although the privilege for confidential communications is retained. Rules 215, 216. See Ladd, A Modern Code of Evidence, 27 Iowa L.Rev. 214, reprinted in the Institute's Model Code, 329, 344; also Report of Committee on Improvements in the Law of Evidence, 1938, 63 A.B.A.Rep. 594, 595. In New York by statute a husband or wife is a competent witness against the other in a criminal cause, except that neither can be compelled to disclose a confidential communication made by one to the other during the marriage, N.Y.Penal Law § 2445, Consol. Laws, c. 40, and except that no conviction under N.Y.Penal Law § 1090 for the compulsory prostitution of a wife shall be had upon the testimony of the wife unsupported by other evidence.2 Of course, the privilege of one spouse to testify for the other was established in the federal courts in the notable opinion of Justice Sutherland in Funk v. United States, 290 U.S. 371, 54 S.Ct. 212, 78 L.Ed. 369, 93 A.L.R. 1136.
In the present case, defendant through his counsel objected "to his wife testifying unless she is going to testify voluntarily." The court asked her if she was willing to testify, and she replied, "Yes." The examination then proceeded. Although there is some basis at least under statutes for the view that the privilege is that of the witness, Commonwealth v. Barker, 185 Mass. 324, 70 N.E. 203; Commonwealth v. Barronian, 235 Mass. 364, 126 N.E. 833, clearly the better view is that the privilege is that of either spouse who chooses to claim it. Wigmore, id. § 2241. Even if the objection was not adequate in scope here, we think we should notice the assigned error, in view of its importance in the case, and all the circumstances, including the objections made to counsel hereinafter discussed. Indeed, it seems desirable to point out that no injustice was done the accused, for we think the testimony clearly admissible under a long recognized exception to the general principle.
This is the famous exception for Necessity, in the case of injuries to the spouse, stated in 1631 in Lord Audley's Case, Hut. 115, 3 How.St.Tr. 401, where the husband had instigated rape against his wife. The exception itself is well settled; the only question at all doubtful is whether it can be properly applied to a violation of the White Slave Traffic Act. Here the argument is made that this is not a crime against the person of the wife, but a crime against interstate commerce. But, as Wigmore, id. § 2239, says generally of all cases of enticing to prostitution or white slave traffic involving the wife, "of course morally it is a shameless offense against wifehood"; and we agree, as do all the authorities, with a single exception, which deal with the specific question under this statute. Denning v. United States, 5 Cir., 247 F. 463; Pappas v. United States, 9 Cir., 241 F. 665; Cohen v. United States, 9 Cir., 214 F. 23, certiorari denied 235 U.S. 696, 35 S.Ct. 199, 59 L.Ed. 430; United States v. Rispoli, D.C.E.D.Pa., 189 F. 271; United States v. Bozeman, D.C.W.D.Wash., 236 F. 432.3 In the only case which has ruled otherwise, Johnson v. United States, 8 Cir., 221 F. 250, the court, as Wigmore, id., points out, failed to consider the exception at all. In Yoder v. United States, 10 Cir., 80 F.2d 665, the defendant's divorced wife was allowed to testify in denial of the defendant's testimony, but Judge McDermott rested the court's decision on the broader ground of the wife's competency. See also Cohen v. United States, 5 Cir., 120 F.2d 139. In Kerr v. United States, 9 Cir., 11 F.2d 227, certiorari denied 271 U.S. 689, 46 S.Ct. 639, 70 L.Ed. 1153, on a prosecution for violation of the mails, a wife was allowed to testify that her husband had mailed her poisoned candy.
To say of this statute at bar that all it does is to preserve the purity of our federal compact is to shut our eyes to the realities of modern federal crime, where the federal ground, whatever it may be, is the constitutional excuse and justification, rather the reason for being, of the legislation. Cf. Chamberlain, Federal Criminal Statutes, 1934, 20 A.B.A.J. 501; Federal Co-operation in Criminal Law Enforcement, 48 Harv.L.Rev. 489; 1 Law & Contemp. Prob. 399-508. Whatever else this statute may do, it strikes at the exploitation of women, and comes directly within the reason of the exception. After all, the situation of the injured wife deserves some consideration; and in circumstances such as are here presented, we think it would be shocking to deny her the right to testify. With Denning v. United States, supra, 247 F. at page 466, we believe that "a woman is as much entitled to protection against complete degradation as against a simple assault."
Although the further point has been urged in the two able briefs presented on behalf of the accused that confidential communications between husband and wife were improperly allowed, we think that is not the case here. For application of the privilege, the communications must be such as from their nature were fairly intended to be confidential. Wolfle v. United States, 291 U.S. 7, 54 S.Ct. 279, 78 L.Ed. 617; Yoder v. United States, supra; Wigmore, id. § 2336. Wigmore indeed urges that there should be the same exception for necessity as in the privilege against testifying, id. § 2338; and the Institute's Model Code, supra, so provides. Further, it is clear that communications actually made outside the marriage relation, as before marriage, are not within the rule. Halback v. Hill, 49 App.D.C. 127, 261 F. 1007; Yoder v. United States, supra; Commonwealth v. Barronian, supra; Wigmore, id. § 2335; and...
To continue reading
Request your trial-
People v. Ross
...2 Cir., 105 F.2d 921, revd. 308 U.S. 287, 60 S.Ct. 198, 84 L.Ed. 257; United States v. Liss, 2 Cir., 137 F.2d 995; United States v. Mitchell, 2 Cir., 137 F.2d 1006; Bollenbach v. United States, 2 Cir., 147 F.2d 199, revd. 326 U.S. 607, 66 S.Ct. 402, 90 L.Ed. 350; (Kotteakos v. United States......
-
United States v. Dennis
...F.2d 401; United States v. Crimmins, 2 Cir., 123 F.2d 271; United States v. Cohen, 2 Cir., 145 F.2d 82, 90, 91. 42 United States v. Mitchell, 2 Cir., 137 F.2d 1006, 1010; Id., 2 Cir., 138 F.2d 831; United States v. Gutterman, 2 Cir., 147 F.2d 540, 157 A.L.R. 43 315 U.S. 60, 62 S.Ct. 457, 86......
-
United States v. Lutwak
...is such a personal wrong against her as to make her testimony admissible in a prosecution of him under the Mann Act. See United States v. Mitchell, 2 Cir., 137 F.2d 1006, reaffirmed 138 F.2d 831, certiorari denied 321 U.S. 794, 64 S.Ct. 785, 88 L.Ed. 108, rehearing denied 322 U.S. 768, 64 S......
-
United States v. Antonelli Fireworks Co.
...adopted by my colleagues and which they apply here. Their position is illuminated by their decision in a recent case, United States v. Mitchell, 2 Cir., 137 F.2d 1006, 1010, in which the testimony was in conflict, and in which they held harmless unfairness towards the defendant on the part ......
-
Conditional Rules in Criminal Procedure: Alice in Wonderland Meets the Constitution
...(1945); Lyons v. Oklahoma, 322 U.S. 596, 597 n.l (1944); Bram v. United States, 168 U.S. 532,540-42 (1897); United States v. Mitchell, 137 F.2d 1006, 1012 (1943)) ("Thus, when forced confessions have been received, reversals have followed although on other evidence guilt might be taken to b......