Young v. Superior Court In and For Alameda County

• Citation: 190 Cal.App.2d 759,12 Cal.Rptr. 331
• Decision Date: 03 April 1961
• Docket Number: No. 19747,19747
• Court: California Court of Appeals
• Parties: Joyce Lorraine YOUNG, Petitioner, v. SUPERIOR COURT of the State of California, IN AND FOR the COUNTY OF ALAMEDA, and the Honorable Donald K. Quayle, Judge Thereof, Respondents.

Page 331

12 Cal.Rptr. 331

190 Cal.App.2d 759

Joyce Lorraine YOUNG, Petitioner, v. SUPERIOR COURT of the State of California, IN AND FOR the COUNTY OF ALAMEDA, and the Honorable Donald K. Quayle, Judge Thereof, Respondents.

No. 19747.

District Court of Appeal, First District, Division 1, California.

April 3, 1961.

Herman W. Mintz, John A. Gunning, James Giller, David A. Himmelman, Oakland, for petitioner.

Stanley Mosk, Atty. Gen., Arlo E. Smith, Albert W. Harris, Jr., Deputy Attys. Gen., J. R. Coakley, Dist. Atty. of Alameda County, Jerry G. Murphy, Deputy Dist. Atty., Oakland, for respondents.

BRAY, Presiding Justice.

Petition for writ of prohibition to compel the superior court to desist from further proceedings in a criminal case.

Question Presented.

Has a husband physically injured by his wife a privilege to refuse to testify against the wife in a criminal action based on that injury?

Record.

Defendant shot her husband, Jeremiah, inflicting two bullet wounds on his body. Thereafter she was charged with violation of section 217, Penal Code (assault on Jeremiah with intent to commit murder). At the preliminary examination, Jeremiah refused to testify, claiming privilege under section 1322, Penal Code. The magistrate, over defendant's objection, ordered Jeremiah to testify. He did. Defendant was held to answer. After information was filed charging defendant with violation of section 217, Penal Code, defendant moved to set it aside on the ground that the magistrate erred in compelling Jeremiah to testify. Defendant then filed said petition.

Injured Spouse Has No Privilege.

It is clear that in a criminal prosecution based on the physical injury to him, an injured spouse has no privilege not to testify and may be compelled to testify.

The pertinent statutes involved are set forth below:

Code of Civil Procedure, section 1881, subdivision (1): 'A husband cannot be examined for or against his wife without her consent; nor a wife for or against her husband, without his consent; nor can either, during the marriage or afterward, be, without the consent of the other, examined as to any communication made by one to the other during the marriage; but this exception does not apply to a civil action or proceeding by one against the other, nor to a criminal action or proceeding for a crime committed by one against the other, or for a crime committed against another person by a husband or wife while engaged in committing and connected with the commission of a crime by one against the other; or in an action for damages against another person for adultery committed by either husband or wife.' (Emphasis added.)

Penal Code, section 1322: 'Neither husband nor wife is a competent witness for or against the other in a criminal action or proceeding to which one or both are parties, except with the consent of both, or in case of criminal actions or proceedings for a crime committed by one against the person or property of the other, whether before or after marriage or in cases of criminal violence upon one by the other, or upon the child or children of one by the other or in cases of criminal actions or proceedings for bigamy, or adultery, or in cases of criminal actions or proceedings brought under the provisions of section[s] 270 and 270a of this code or under any provisions of the 'Juvenile Court Law." (Emphasis added.)

Defendant argues that the basic requirement in both sections hereinbefore quoted, that a spouse may not testify without the consent of both spouses, carries into the exceptions therein set forth, and hence the husband has a privilege to refuse to testify in any case involving his wife. But it is clear in reading the sections that the requirement of consent of both does not apply to the situations set forth after the words 'but this exception does not apply' in section 1881, subdivision 1, Code of Civil Procedure, and 'or in case of' in section 1322, Penal Code.

The question here is one of first impression in California, possibly because the said code sections are so clear that no litigant heretofore deemed it worthwhile to raise the question.

There has been an interchange of the terms 'privilege' and 'competence' in referring to the rights of spouses under the two sections. However, the proper term is 'privilege,' as it is the privilege of a spouse to prevent the other spouse who is a competent witness from testifying under the circumstances set forth in the sections. Thus, 'competency' as it is used in section 1322 really means 'privilege.' If a spouse comes within the exceptions in that section, the 'privilege' does not exist. See In re Strand, 1932, 123 Cal.App. 170, 172, 11 P.2d 89; People v. Wilkins, 1955, 135 Cal.App.2d 371, 379, 287 P.2d 555. It has frequently been held that when one spouse directs a criminal act towards the other, the injured spouse becomes 'competent' to testify against the other. See People v. Pittullo, 1953, 116 Cal.App.2d 373, 377, 253 P.2d 705; People v. Tidwell, 1943, 61 Cal.App.2d 58, 61, 141 P.2d 969; In re Kellogg, 1940, 41 Cal.App.2d 833, 107 P.2d 964; In re Kantrowitz, 1914, 24 Cal.App. 203, 205, 140 P. 1078; People v. Rader, 1914, 24 Cal.App. 477, 484, 141 P. 958.

At common law neither husband nor wife could testify in an action to which the other was a party. 8 Wigmore, Evidence, 3rd ed., 1940, § 2227. The reason was that the husband and wife were one in the eyes of the law, and since the litigant spouse was incompetent to testify because of interest, the other spouse also was considered incompetent. Thus, in the beginning the rule was based primarily on 'competency' to testify rather than on 'privilege' not to testify. As time went on a litigant became no longer disqualified because of interest, and two new reasons were developed. One was that because of the identity of interest between the two, one spouse ought not to testify for the other because of possible bias. The second reason and the one upon which, for many years, even in this country, emphasis was placed, was that domestic harmony and confidence would be in peril if one spouse could testify against the other. ¹ Under this rule one spouse could injure the other criminally with impunity. Because of this, an exception to the rule developed because of necessity. This exception allowed the injured spouse to testify against the other for offenses against his or her person.

The federal courts have entirely abolished the common law rule of disqualification of one spouse to testify for the other in criminal actions. While some federal courts have indicated that the common law disqualification of one spouse to testify against the other should be abolished (see Lutwak v. United States, 1953, 344 U.S. 604, 614, 73 S.Ct. 481, 97 L.Ed. 593; Thouvenell v. Zerbst, 1936, 83 F.2d 1003, 1004; Yoder v. United States, 1935, 80 F.2d 665, 667-668 (both 10th Circ.), the only cases in which they have done so are cases involving the Mann Act, 18 U.S.C.A. § 2421. One of these is Wyatt v. United States, 1960, 362 U.S. 525, 80 S.Ct. 901, 4 L.Ed.2d 931, where the defendant was charged with transporting his wife in interstate commerce for immoral purposes. The wife was required to testify over both her own and the defendant's objections. The court held, although with three justices dissenting, that she was properly required to testify, even though she was not married to the defendant until after the criminal act took place.

'All states have established by statute the testimonial status of husband and wife in actions to which one is a party. These statutes vary considerably, ranging from almost full adoption of the common-law rule on the one hand to its total abolition on the other.' ('The Marital 'For and Against' Privilege in California,' supra, 8 Stanford L.Rev., p. 423.) No state had given the injured spouse in a criminal action brought against the other for injury to the former the right to refuse to testify. In California, in 1866, a statute was enacted making the injured spouse a competent witness in a criminal action involving 'personal violence' by one spouse against the other. With the adoption of the codes in 1872, this rule was carried into section 1881, subdivision 1, Code of Civil Procedure, and section 1322, Penal Code. ²

In Tidwell, supra, 61 Cal.App.2d 61, 141 P.2d 970, ...