247 F. 463 | 5th Cir. | 1918
Plaintiff in error was convicted upon the charge of having feloniously persuaded and induced a woman to go from one place to another in interstate commerce for the purpose of prostitution. The woman was his wife. The wife was called as a witness, and her testimony, with other evidence in the case, was sufficient to sustain the verdict. If her testimony be rejected, the evidence is insufficient.
“It is, However, admitted, in all the cases, tHat tHe wife is not a competent” witness, “except in cases of violence upon Her person, directly to criminate Her Husband, or to disclose tHat wHicH sbe Had learned from Him in tHeir confidential intercourse.” “This rule,” says the court, “is founded upon the deepest and soundest principles of our nature—principles which Have grown out of those domestic relations that constitute the basis of’civil society, and which are essential to the enjoyment of that confidence which should subsist between those who are connected by the nearest and dearest relations of life.”
Justice Brewer, in the case of Bassett v. United States, 137 U. S. 496, 11 Sup. Ct. 165, 34 L. Ed. 762, used this language:
“And the common-law exception to the silence upon the. lips of the husband and wife Was only broken, as we have noticed, in cases of assault of one upon the other.”
Continues the court:
“Polygamy and adultery may be crimes which involve disloyalty to the marital relation, but they are rather crimes against such relation than against the wife.”
The common law had no occasion to deal specifically with the matter under consideration, and any rule which is now to be applied must be
The first case brought to our attention specifically ruling upon the matter here involved is U. S. v. Rispoli (D. C.) 189 Fed. 271, wherein District Judge McPherson permitted the wife to testify, holding that, in cases where the wife’s personal rights were concerned, the exceptions should be benevolently regarded, and that the—-
“offense in question was essentially within the spirit of the long-established rule that allows her to testify in protection or in vindication of her right to be secure in her person against threat or assault, even by her husband.”
In Cohen v. United States, 214 Fed. 29, 130 C. C. A. 423, the Circuit Court of Appeals for the Ninth Circuit held:
“That the personal injury to a wife which permits the admission of her testimony against her husband, within the exception recognized at the common law, * * * is not confined to cases of personal violence, but may include cases involving a tort against the wife, or a serious moral wrong inflicted upon her,”
and that she could testify against him in a case of the kind here under investigation.
A different conclusion was reached by the Circuit Court of Appeals for the Eighth Circuit in Johnson v. United States, 221 Fed. 250, 137 C. C. A. 106, and in United States v. Gwynne (D. C.) 209 Fed. 993, it was held that, where the offense was committed before marriage, the wife could not testify.
In the case of Lord Audrey, found guilty of rape against his own wife by having instigated another to the act of violence, the question having arisen upon his trial before the House of Lords, the judges ruled:
“In a criminal canse of this nature, where the wife is the party grieved, and on whom the. crime is committed, she is to be admitted as a witness against her husband.”
It must be held that it is within the reason of the common-law exception to the rule of incompetency to permit the wife to testify against the husband when the commission of the offense charged against the latter is an act directed against the person of the former. It cannot be that the common law would protect the wife against a single act of violence, and not against a system of assaults; against an act that brought merely mortification and shame, and not against a series of acts which brought degradation and destruction'of body and soul; against a single essay at crime, and not against a continuing effort at pre-eminence in infamy.
The offense cannot be classed with those which merely offend the marital relation. It operates immediately and directly upon the wife. It is an offense against the wife. A primary purpose of the Mann Act was to protect women who were weak from men who were bad. Its protection was not confined to unmarried women. Its punishment was not intended to be limited to unmarried men. Men led by cupidity to the base crime have utilized marriage in the accomplishment of their ends. They should not be permitted to use marriage to prevent their
In the absence of an authoritative expression from the Supreme Court, we hold that a woman is as much entitled 'to protection against complete degradation as against a simple assault. The evidence was properly admitted.
The judgment is affirmed.