Yoder v. United States, 1246.

• Decision Date: 09 December 1935
• Docket Number: No. 1246.,1246.
• Citation: 80 F.2d 665
• Parties: YODER v. UNITED STATES.
• Court: U.S. Court of Appeals — Tenth Circuit

80 F.2d 665 (1935)

YODER v. UNITED STATES.

No. 1246.

Circuit Court of Appeals, Tenth Circuit.

December 9, 1935.

F. H. Reily and Joe H. Reily, both of Shawnee, Okl., for appellant.

William C. Lewis, U. S. Atty., and F. M. Dudley, Asst. U. S. Atty., both of Oklahoma City, Okl.

Before LEWIS, PHILLIPS, and McDERMOTT, Circuit Judges.

McDERMOTT, Circuit Judge.

The sordid story of the joint adventure in immorality forming the basis for this prosecution by the United States government need only be sketched here, for upon the first appeal (C.C.A.) 71 F.(2d) 85, the facts are stated fully. There are some discrepancies. On both trials the prosecuting witness testified she was 18 at the time of the transportation; at the first trial it appeared she was 20, and upon this trial 22. In 1933 she testified "I have been married four years" and on this trial testified she had been married four years in 1931. Then she testified "We were going to Chicago to try to buy a garage"; now she testifies that "they went to Chicago for the purpose of getting divorces and getting married." In this trial, proof of the effort to exact $1700 from appellant's father in consideration of not prosecuting this case, was not offered. Nor was the testimony offered this time that she had testified in the state court that "she did not go to Chicago with Roy Yoder for any immoral purpose."

But the differences do not warrant detailing the proof again. It suffices now to narrate that Sammy Young was married to a man more than twice her age. She met Yoder at his garage and cultivated the acquaintance although both were married and she knew it; she testified that on her first clandestine meeting with appellant "we drove around and we would talk, and I told him I was not satisfied with my husband. He knew my husband was old for me and everything, oh, I don't know." Within a surprisingly short time — on the first trial she said a week or more, now she says two or three weeks — they were having illicit relations frequently. She testifies that they agreed to go to Chicago for the primary purpose of getting divorces and marrying, and incidentally to buy a garage. She drove her car to his garage, picked him up, and in her car drove to Chicago, having intercourse at all stops, stayed a day and came back home. This prosecution followed an unsuccessful effort to get money from him or his father. After a verdict of guilty, appellant was sentenced to three years in the penitentiary. Two principal errors are assigned.

1. One concerns the admissibility against Yoder of testimony of his divorced wife. Yoder testified that he and Mrs. Young left for Chicago from his home, and that both of them talked to Yoder's wife about the trip. In rebuttal, the government called Mrs. Yoder, who had divorced Yoder after the Chicago trip and before the trial, and over seasonable objection and exception, she testified that she was not home the day her husband and Mrs. Young left for Chicago; that she was in Seminole; that she did not know Mrs. Young; that when she returned from Seminole, she found a note from her husband, written on a large cardboard, that he had gone to Blackwell; that after the divorce Yoder asked her to corroborate his testimony by false swearing.

We are of the opinion that this testimony was rightly admitted. Until 1933, spouses were incompetent witnesses in criminal trials in the federal courts. But in that year, in Funk v. United States, 290 U.S. 371, 54 S.Ct. 212, 78 L.Ed. 369, 93 A.L.R. 1136, the subject of evidence in criminal cases was exhaustively reviewed, and the court held that the rules of evidence were not restricted to the local rules in force at the time of the admission into the Union of the state where the trial took place, but were governed by common law principles as interpreted by the federal courts in the light of reason and experience. It was there held that a wife is a competent witness for her husband. Whether she is a competent witness against him was reserved, and has not been authoritatively decided.

From the dawn of the common law until the middle of the nineteenth century, the accused could not testify in his own behalf because of his interest in the event of the trial. The rule had its roots in the era when no witnesses were called in any jury trial, unless the jury or the court sought their testimony to supplement their own information; after witnesses were admitted in civil cases, the accused was not permitted to call witnesses in his own behalf until the seventeenth century; and for nearly two centuries after that, the accused was disqualified as a witness. But the common law has lived because it is not chained to the traditions and dogmas of the past. Learned writers and judges long ago challenged the policy of rigid rules that denied access to the facts. Courts and juries, searching for the truth, chafed under a system which denied the accused an opportunity to tell his story. But not until 1864 was the rule abrogated in any state in this country (chapter 280, Me.Stat. 1864); in 1878 Congress removed the bar of incompetency (20 Stat. 30, 28 U.S. C.A. § 632), and in 1898 England followed suit. The accused is now a competent witness in his own behalf in every state save possibly one.

By similar statutes every state but one permits a wife or husband to testify when the other is accused, sometimes only in his behalf or with his or her consent. Notwithstanding that a wife has a lesser interest in the outcome than the accused, Congress passed no statute removing the bar as to her, but as has been seen the ancient rule was abrogated by judicial decision. A wife is now competent to testify for her accused husband; the question still remains, May she testify against him? In this case, she was divorced when she testified, and there may well be a distinction on that ground. We prefer, however, to rest our decision on the underlying question, whether a wife is incompetent as a witness when called by the prosecution.

The accused himself, by the federal constitution and the constitution or laws of the states, may not be compelled to testify upon his own trial. Should that immunity extend to his wife? The enlightenment of the times which requires modification of common law principles may be found in the informed judgment of legislatures or the courts. Funk v. United States, supra. An analysis of the statutes of the various states and territories, compiled by Dean Wigmore in 1923 (Wigmore on Evidence, § 488) indicates that the wife is a competent witness with his consent in 18 states; competent, but not compelled to testify, in 4; competent for the defense in 5. In these states, and in 3 others where otherwise incompetent, she may testify against her husband, without his consent, where certain crimes, such as assault upon her, are involved. In 20 states, all restrictions on her competency have been removed.

These statutes, and the decisions of many courts which might be cited, indicate a clear and decided trend toward removing the bar of incompetency from witnesses as such; that we are moving steadily in the direction of allowing the trier of the facts to hear all the evidence, the interest or relationship of the witness to the parties being given due consideration in weighing its value. The trend is in the right direction, for we can see no reason why Mrs. Yoder should not testify that she was in Seminole, and not Shawnee, on a certain day, and that she did not know Mrs. Young; nor can we see any reason why Yoder, who testified to the contrary, should have the privilege of excluding her testimony.

Her testimony of communications between her and Yoder after the divorce are not privileged, because they were not then husband and wife. Mrs. Yoder's testimony, however, did not stop there. She testified to a written communication between her and her husband during their marriage. Competency of this testimony involves very different considerations from those concerning her competency as a witness. The wisdom of the common law rules that held inviolate the confidence of a penitent in his priest, a patient in his physician, a client in his lawyer, and a husband in his wife, has stood the test of time. The statutes of forty-two jurisdictions provide that private communications between husband and wife are incompetent evidence, and in twenty-six of these it is expressly provided that they are incompetent during the marriage and afterward. Such is the rule in the federal courts. Hopkins v. Grimshaw, 165 U.S. 342, 17 S.Ct. 401, 41 L.Ed. 739.

Mrs. Yoder testified that her husband left a note for her, written on a large cardboard and doubtless in a conspicuous place, telling her he was in Blackwell. Is this communication confidential and privileged?

The question is, we think, authoritatively decided in Wolfle v. United States, 291 U.S. 7, 54 S.Ct. 279, 280, 78 L.Ed. 617. There a letter to a wife, dictated and testified to by a stenographer, was held admissible, reserving however the question whether the wife could have identified it. The following excerpts from the opinion bear directly upon the case at bar:

"Communications between the spouses, privately made, are generally assumed to have been intended to be confidential, and hence they are privileged; but, wherever a communication, because of its nature or the circumstances under which it was made, was obviously not intended to be confidential, it is not a privileged communication. * * * The privilege suppresses relevant testimony, and should be allowed only when it is plain that marital confidence cannot otherwise reasonably be preserved."

When it is sought to elicit a communication between husband and wife, not made in the presence of others, it should be excluded unless it appears to the court, either from the method or the nature of the communication, that obviously it was not intended to be confidential. Both the method and the nature of this communication demonstrate that there was...