United States v. Williams

• Decision Date: 26 April 1944
• Docket Number: No. 7522.,7522.
• Citation: 55 F. Supp. 375
• Parties: UNITED STATES v. WILLIAMS
• Court: U.S. District Court — District of Minnesota

55 F. Supp. 375

UNITED STATES v. WILLIAMS

No. 7522.

District Court, D. Minnesota, Fourth Division.

April 26, 1944.

NORDBYE, District Judge.

O. A. Blanchard, of St. Paul, Minn., for defendant in support of said motion.

Victor E. Anderson, U. S. Atty., and John W. Graff, Asst. U. S. Atty., both of St. Paul, Minn., for United States of America in opposition thereto.

On November 2, 1943, defendant was indicted by the Grand Jury upon six counts for alleged violations of the Mann Act, 36 Stat. 825, 18 U.S.C.A. § 397 et seq. The case was tried before this Court and a jury during the March, 1944, term of court. A verdict of guilty was returned on all counts. At the trial the Government called one Esther Jensen Williams as a witness. When she testified in answer to the Government's first question that she and defendant had been married in January, 1944, defendant objected to her being further questioned, contending that she was an incompetent witness because of the marriage. The marriage took place after the offenses involved herein. After argument in the jury's absence, the Court overruled the objection, and Esther Jensen Williams proceeded to testify concerning six trips which she made from Minneapolis, Minnesota, to Mason City, Iowa, in 1943 for the purposes of practicing prostitution at Mason City, and of defendant's connection therewith.

Although other witnesses were called, and although their testimony, to some extent, at least, corroborated that of the allegedly transported woman, there seems little doubt that without the testimony of the wife the Government would not have been able to prove its case. Defendant's counsel now moves for a new trial upon the ground that the Court committed error in permitting Esther Jensen Williams to testify. Defendant contends that she was an incompetent witness according to the common law by which this Court is bound. There is no contention that the question of privilege between husband and wife with respect to confidential communications is involved. And, so far as the record shows, the wife did not object to testifying.

There is no doubt that at the old common law a wife generally could not testify against her husband. Stein v. Bowman, 1839, 38 U.S. 209, 13 Pet. 209, 10 L. Ed. 129; Bassett v. United States, 1890, 137 U.S. 496, 11 S.Ct. 165, 34 L.Ed. 762. Such a rule was and still is sustained upon the ground that the contrary rule would disturb the marital happiness of the couple. 8 Wigmore on Evidence, 3d Ed., Sec. 2227 et seq. But an exception to this rule was made and the wife was permitted to testify against her husband when she suffered personal injury through his actions. That exception was based upon the necessity of the situation, for the absence of such an exception would leave the wife without protection against personal injury from her husband. Lord Audley's Case, 1631, 3 How.St.Tr. 401, 402, 414; 8 Wigmore on Evidence, 3d Ed., Sec. 2239.

These were the rules already existing in 1789,¹ and which the Circuit Court of Appeals for the Eighth Circuit considered binding in Johnson v. United States, 1916, 221 F. 250. In that case the court did hold that a wife whose husband transports her across interstate lines for immoral purposes could not testify against him. But the case was predicated upon the ground that at common law a woman could not testify against her husband unless she had suffered personal violence at his hands. That rule, the court held, could only be changed by statute. There is no doubt that when the Johnson case was decided the court was assumed to be bound by the common law as it was then interpreted,² although its application to the factual situation in the Johnson case may be open to doubt in view of the subsequent discussion.

But, in any event, the United States Supreme Court now has held in Funk v. United States, 1933, 290 U.S. 371, 54 S.Ct. 212, 78 L.Ed. 369, 93 A.L.R. 1136, that henceforth Federal courts are not bound by the common-law rules which governed a wife's competency and privilege to testify in 1789 or any other year. It held that the Federal courts can expand or contract these common-law rules as modern experience and necessity demand in the interest of justice. Legislation was held not to be necessary to change the common-law rules. United States v. Wood, 1936, 299 U.S. 123, 144, 57 S.Ct. 177, 81 L.Ed. 78; see, also, McNabb v. United States, 1942, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819. Thus it would seem that, with one stroke, reinforced by subsequent decisions, the Supreme Court destroyed the very foundations of the Johnson decision.

The Eighth Circuit Court of Appeals also has recognized this conclusion since the Johnson case was decided. In a strong dictum in Tinsley v. United States, 1930, 43 F.2d 890, that court declared that the ancient rules of the common law were no longer binding upon the court and clearly indicated that Judge Stone's dissent in Adams v. United States, 8 Cir., 1919, 259 F. 214, 215, was the sounder view.³ Consequently, both the United States Supreme Court and the Appellate Court for this Circuit authorize this Court to depart from the old common-law rules applied in the Johnson case if good reason and public policy exist therefor. So the question is not, as defendant's counsel seems to assume and the Johnson case holds, What was the common law in the beginning? But, on the contrary, the question is, What should the common law be now in light of reason and experience? As stated by the Supreme Court in the Funk case page 381 of 290 U.S., page 215 of 54 S.Ct., 78 L.Ed. 369, 93 A.L.R. 1136: "The fundamental basis upon which all rules of evidence must rest — if they are to rest upon reason — is their adaptation to the successful development of the truth. And, since experience is of all teachers the most dependable, and since experience also is a continuous process, it follows that a rule of evidence at one time thought necessary to the ascertainment of truth should yield to the experience of a succeeding generation whenever that experience has clearly demonstrated the fallacy or unwisdom of the old rule."

The old common-law general rule that a wife cannot testify against her husband without his consent has been attacked often and forcefully. See Wigmore on Evidence, 3d Ed., Sec. 2228. But whatever soundness and justification these attacks may possess (and there seems little doubt but that they do possess some soundness), neither they nor the general rule need be dealt with in this case except indirectly. The soundness of the general rule and the justification for its existence (the preservation of marital happiness) may be, for the purposes of this discussion, assumed. We are concerned, however, only with the question of whether a woman who has been transported or caused to be transported in interstate commerce for immoral purposes by one who is now her husband can testify against the husband when he is prosecuted criminally for that crime. Certainly, experience, sound reasoning, and good public policy, based upon modern understanding, require the question to be determined adversely to the defendant's contention.

We are dealing here with a problem which does not appear to have confronted the common-law courts, in that transportation of women in commerce for immoral purposes is a modern statutory crime which does not seem to have existed at common law. That is, although prostitution may have been rampant in common-law days, interstate transportation of women for such purposes obviously was then no crime. Moreover, the old common-law cases which are cited as involving exceptions to the general rule that a wife cannot testify against her husband do not appear to consider crimes which corrupted the wife's morality. See Denning v. United States, 5 Cir., 1918, 247 F. 463. Crimes like seduction before marriage, assault and battery, and rape, all involve personal violence to the wife. Although crimes like adultery and fraud on the part of the husband may not involve personal violence and may be a moral wrong to the wife, certainly they involve no injury to her morals. The Mann Act violations of the character now under consideration do involve injury to the wife's morals. Consequently, cases coming down to us from the old common law of 1789, and still followed by some courts today, really pertain only to crimes of personal violence by the husband against his wife and not to crimes like the instant one which result in moral violence to the wife. So it seems fallacious to suggest that a wife cannot testify against her husband — even if he has injured her morals — merely because the common law provided for a wife's testifying against her husband only when he had used violence upon her person. The common law seems never to have had occasion to consider the question of exceptions to the general rule further than the personal injury situation.

No one can doubt that the common-law exception invoked when the husband uses personal violence against his wife is sound. Moreover, it is securely rooted in the foundations of modern justice, and no reason to unearth it has been suggested. As some courts which have considered the question of moral injury have pointed out, the acts like those which this defendant has committed are the same, in practical thinking, as an act of personal violence against the wife. See Denning v. United States, supra; Cohen v. United States, 9 Cir., 1914, 214 F. 23, certiorari denied 235 U.S. 696, 35 S.Ct. 199, 59 L.Ed. 430; United States v. Rispoli, D.C. Pa.1911, 189 F. 271; see, also, Pappas v. United States, 9 Cir., 1917, 241 F. 665; United States v. Bozeman, D.C.Wash.1916, 236 F. 432. It is undoubtedly an offense against the wife, and it operates directly and immediately upon her. And the inevitable and foreseeable physical violence following the transportation cannot be divorced from the transportation, at least in so far as the injuries to the wife are concerned.

In fact, Lord...