214 F. 23 | 9th Cir. | 1914
(after stating the facts as above).
“In all criminal actions, where the husband is the party accused, the wife shall be a competent witness, and when the wife is the party accused, the husband shall be a competent witness; but neither husband nor wife, in such cases, shall be compelled or allowed to testify in such case unless by consent of both of them; provided, that in all cases of personal violence upon either by the other, the injured party, husband or wife, shall be allowed to testify against the other.”
And that that statute was made applicable to the proceeding on the preliminary hearing by virtue of section 1014 of the Revised Statutes, which provides that any offender against the laws of the United States may be arrested, imprisoned, or bailed, etc., “agreeably to the usual mode of process against offenders in such state.”
It is argued that the meaning of this section is that, in all hearings on the arrest and commitment of offenders against the laws of the United States, the practice and rules of evidence of the state in which the hearing is had shall be followed. We do not so construe that section. It provides only, as we held in United States v. Dunbar, 83 Fed. 151, 27 C. C. A. 488, that the proceeding before the commissioner shall assimilate the proceeding for a similar purpose provided by the laws of the state. It should not be assumed that it was the intention of Congress, in adopting section 1014, to enact that the admissibility of evidence in.proving an offense against the laws of the United States shall depend upon the laws of evidence of the state in which the examination is had, with the result that for the same act a defendant might be held to answer in one state and discharged in another, and that the witnesses on the preliminary examination might be different from those who were competent to testify on the trial. The words “mode of process” are equivalent to mode of proceeding. Wayman v. Southard, 10 Wheat. 1, 27, 6 L. Ed. 253. The qualifications of witnesses have nothing to do with the “mode of process.” It has never been held, so far as we are advised, that a United States commissioner must, on a preliminary examination, observe the laws of the state as to the qualifications of witnesses and rules of evidence. In United States v. Patterson, 150 U. S. 65, 14 Sup. Ct. 20, 37 L. Ed. 999, the court said:
“It was held, in the case of United States v. Ewing, 140 U. S. 142 [11 Sup. Ct. 743, 35 L. Ed. 388], that, in view of section 1014 of tbe Revised Statutes, the law of the state in which the services are rendered must be looked at, in order to determine what is necessary in the matter of procedure.”
The competency of witnesses in criminal trials in the courts of the United States is not governed by a statute of the state, but by the common law, except where Congress has made specific provisions on the subject. Logan v. United States, 144 U. S. 263, 303, 12 Sup. Ct. 617, 36 L. Ed. 429. There being no specific provision on the subject, the common law is applicable.
“Something has been said about the manner in which Miss Wood was treated before the commissioner. Now, I do not think that that is very material in this case. If she was sworn and testified as a witness in that case, and knowingly and willfully testified falsely, she committed perjury,' and that is about all that is necessary to be said about that matter. It is one of the facts in the case, and you have a right to weigh it along with all ■ the other testimony in the case; but however badly she may have been treated, or however wrongly she may have been treated, would be no justification or excuse on behalf of this defendant if, as a matter of fact, she committed perjury at his request or his instigation.”
This instruction was not inapplicable to the state of facts disclosed by the evidence. Esther Wood, when she first appeared before the commissioner, was not known to be the wife of Gronich. She at first refused to answer questions. She was subjected to some coercion by the commissioner, and the district attorney, to compel her to answer. She declined to do so until she might have an opportunity to consult with the plaintiff in error, her attorney. After she had that consultation, and while the plaintiff in error was in attendance at the hearing,
We find no error.
The judgment is affirmed.