Funk v. United StatesFunk v. United States
delivered the opinion of the Court.
The sole inquiry to be made in this case is whether in a federal court the wife of the defendant on trial for a criminal offense is a competent witness in his behalf. Her competency to testify against him is not involved.
The petitioner was twice tried and convicted in a federal district court upon an indictment for conspiracy to Violate the prohibition law. His conviction on the first trial was reversed by the circuit court of appeals upon a ground not material here. 46 F. (2d) 417. Upon the second trial, as upon the first, defendant called his wife to testify in his behalf. At both trials she was excluded upon the ground of incompetency. The circuit court of appeals sustained this ruling upon the first appeal, and also upon the appeal which followed the second trial. 66 F. (2d) 70. We granted certiorari, limited to the question as to what law is applicable to the determination of the competency of the wife of the petitioner as a' witness.
Both the petitioner and the government, in presenting the case here, put their chief reliance on prior decisions of this court. The government relies on
United States
v.
Reid,
In the Reid case, two persona had been jointly indicted for a murder committed upon the high seas. They were tried separately, and it was held that one of them was not a competent witness in behalf of the other who' was first tried. The trial was had in Virginia; and by a statute of that state passed in 1849, if applicable in a federal court, the evidence would have been competent. Section 34 of the Judiciary Act of 1789 declares that the laws of the several states, except where the Constitution, treaties or statutes of the United States otherwise provide, shall be regarded as rules of decision in trials at common law in the courts of the . United States in cases where they apply; but the court said that this referred only to civil cases and did not apply in the trial of criminal offenses against the United States. It was conceded that there was no act of Congress prescribing in express words the rule by which the federal courts would be governed in the admission of testimony in criminal cases. “ But,” the court said (p. 363), “ we think ft may be found with sufficient certainty, not indeed in direct terms, but by necessary implication, in the acts of 1789 and 1790, establishing the courts of the United States, and providing' for the punishment of certain offences.”
. The court pointed out that the Judiciary Act regulated certain proceedings to be had prior, to impaneling the jury, but contained no express provision concerning the mode of conducting the trial after the jury was sworn, and prescribed no rule in respect of the testimony to be taken. Obviously however, it was said, some certain and
In the Logan case it was held that the competency of a witness to testify in a federal court sitting in one state, was not affected by his conviction and sentence for felony in another state; and that the competency of another witness was not affected by his conviction of felony in a Texas state court, where the witness had since been pardoned. The indictment was for an offense committed in Texas and there tried. The decision was based not upon any statute of the United States, but upon the ground that the subject “ is governed by the common law, which, as has been’ seen, was the law of Texas ... at the time of the admission of Texas into the Union as a State;” (p. 303.)
We next consider the two cases upon which petitioner relies. In the
Benson
case two persons were jointly indicted for murder. On motion of the government th$re was a severance, and' Benson was first tried. His codefendant was called as a witness on behalf of the government. The
Reid
case had been cited as practically de
“ Legislation of similar import prevails in most of the States. The spirit of this legislation has controlled the decisions of the courts, and steadily,, one by one, the merely technical barriers which excluded witnesses from the stand have been removed, till now it is generally,
“. . . If interest and being party to the record do not exclude a defendant on trial from the witness stand, upon what reasoning can a .codefendant not on trial, be adjudged incompetent? ”
That case was decided December 5, 1892. Twenty-five years later this court had before it for consideration the case of Rosen v. United States, supra. Rosen had been tried and convicted in a federal district court for conspiracy. A person jointly indicted with Rosen, who had been convicted upon his plea of guilty, was called as 'a witness by the government and allowed to testify over Rosen’s objection. This court sustained the- competency of the witness. After saying that while the decision in the Reid case had not been specifically overruled, its authority was seriously shaken by the decisions in both the Logan and Benson cases, the court proceeded to dispose of the question, as it had been disposed of'in the Benson case, “ in the light of general authority and sound reason.”
“
In the almost twenty [twenty-five] years,” the court said [pp. 471, 472], “ which have elapsed since the decision of the
Benson Case,
the disposition of courts and of legislative bodies to remove disabilities from witnesses has continued, as that decision shows it had been going forward before, under dominance of the conviction of our time that the truth is more likely to be arrived at by hearing the testimony of all persons of competent understanding who may seem to have knowledge of the facts involved in a case, leaving the credit and weight of such testimony to be determined by the jury or by the court, rather than by rejecting witnesses as incompetent, with
“ Since the decision in the Benson Case we have significant evidence of the trend of congressional opinion upon this subject in the removal of the disability of witnesses convicted of perjury, Rev. Stats., § 5392, by the enactment of the Federal Criminal Code in 1909 with this provision omitted and § 5392 repealed. This is significant, because the disability to testify, of persons convicted of perjury, survived in some jurisdictions much longer than many of the other common-law disabilities, for the reason that the offense concerns directly the giving of testimony in a court of justice, and conviction of it was accepted as showing a greater disregard for the truth than it was thought should be implied from a conviction of other crime.
“ Satisfied as we are that the legislation and the very great weight of judicial authority which have developed in support of this modem rule, especially ás applied to the competency of witnesses convicted of crime, proceed upon sound, principle, we conclude that the dead hand of the common-law rule of 1789 should no longer be applied to such cases as we have here, and that the ruling of the lower courts on this first claim of error should be approved.”
It is well to pause at this point to state a little more concisely what was held in these cases. It will be noted, in the- first place, that the decision in the
Reid
case was not based upon any express statutory .provision. The court found from what the congressional legislation omitted to say, as well as from what it actually said, that in establishing the federal courts in 1789 some definite rule in respect of the testimony to be taken in criminal cases must have been in the mind of Congress; and the rule which the court thought was in the mind of that body was that of the common law as it existed in the thirteen original
With the conclusion that the controlling rule is that of the common law, the Benson case and the Rosen case do not conflict; but both cases reject the notion, which the two earlier ones seem to accept, that the courts, in the face of greatly changed conditions, are still chained to the ancient formulae and are powerless to declare and enforce modifications deemed to have been wrought in the common law itself by force of these changed conditions. Thüs, as we have seen, the court in the Benson case pointed to the tendency during the preceding years to enlarge the domain of competency, significantly saying that the changes had been wrought not only by legislation but also “ partially by judicial construction ”; and that it was the spirit (not the letter, be it observed) of this legislation which had controlled the decisions of the courts and' steadily removed the merely technical barriers in respect of incompetency, until generally no one was excluded from giving testimony, except under certain peculiar conditions which are set forth. It seems difficult to escape the conclusion that the specific ground upon which the court there rested its determination as to the competency of a codefendant was that, since the defendant had been rendered competent, the competency of .the codefendant followed as a natural consequence.
■ This view of the matter is made more positive by the decision in the
Rosen
case. The question of the testi
That the present case falls within the principles of the Benson and Rosen cases, and especially of the latter, we think does not reasonably admit of doubt.
The rules of the common law which disqualified as witnesses persons having an interest, long since, in the main, have been abolished both in England and in this country; and what was once regarded as a sufficient ground for excluding the testimony of such persons altogether has come to be uniformly and more sensibly regarded as affecting the credit of the witness only. Whatever was the danger that an interested witness would not speak the truth—and the danger never was as great- as claimed—its effect has been minimized almost to the vanishing point by the test of cross-examination, the increased intelligence of jurors, and perhaps other circumstances. The modern rule which has removed the disqualification from persons accused of crime gradually came into force after the middle of the last century, and is today universally accepted. The exclusion of the husband or wife is said by this court to be based upon his or her interest in the event.
Jin Fuey Moy
v.
United States, supra.
And whether by this is meant a practical interest in the result of the prosecution
Nor can the exclusion of the wife’s testimony, in the face of the broad and liberal extension of the rules in respect of the competency of witnesses generally, be any longer justified, if it ever was justified, on any ground of public policy. It has been said that to admit such testimony is against public policy because it would endanger the harmony and confidence of marital relations, and, moreover, would subject the witness to the temptation to commit perjury. Modern legislation, in making either spouse competent to testify in behalf of the other in criminal cases, has definitely rejected these notions, and in the fight of such legislation.and of modern thought they seem to be altogether fanciful. The public policy of one generation may not, under changed conditions, be the public policy of another.
Patton
v.
United States,
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 ti^ith. 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.
It may be said that the court should continue to enforce the old rule, however contrary to modern experience and thought, and however opposed, in principle, to the general current of legislation and of judicial opinion, it may
In
Hurtado
v. California.,
“ It is more consonant to the true philosophy of our historical legal institutions to say that the spirit of personal liberty and individual right, which they embodied, was preserved and developed by a progressive growth and wise adaptation to new circumstances and situations of the forms and processes found fit to give, from time to time, new expression and greater effect to modem ideas of self-government.
“ This, flexibility and capacity for growth and adaptation is the peculiar boast and excellence of the common law.
Compare
Holden
v.
Hardy,
To concede this capacity for growth and change in the Common law by drawing “ its inspiration from every fountain of justice,” and at the same time to say that- the courts of this country are forever bound to perpetuate such of its rules as, by every reasonable test, are found to be neither wise nor just, because we have once adopted them as suited to our situation and institutions at a particular time, is to deny to the common law in the place of its adoption a “flexibility and capacity for growth and adaptation ” which was “ the peculiar boast and excellence ” of the system in the place of its origin.
The final question to which we are thus brought is not that of the power of the federal courts to amend or repeal any given rule or principle of the common law, for they neither have nor claim that power, but it is the question of the power of these courts, in the complete absence of congressional legislation on the subject, to declare and effectuate, upon common law principles, what is the present rule upon a given subject in the light of fundamentally altered conditions, without regard to what has previously been declared and practiced. It has been said so often as
tr
have become axiomatic that the common law is not immutable but flexible, and by its -own principles adapts itself to varying conditions. In
Ketelsen
v.
Stilz
“ The rules so deduced from this system, however, were continually changing and expanding with the progress of society in the application of this system to more diversified circumstances and under more advanced periods. The common law by its own principles adapted itself to varying conditions and modified its own rules so as to serve the ends of justice as prompted by a course of reasoning which was guided by these generally accepted truths. One of its oldest maxims was that where the reason of a rule ceased, the rule also ceased, and it logically followed that when it occurred to the courts that a particular rule had never been founded upon reason, and that no reason existed in support thereof, that rule likewise ceased, and perhaps another sprang up in its place which'was based upon reason and justice as then conceived. No rule of the common law could survive the reason on which it was founded. It needed no statute to change it but abrogated itself.”
That court then refers to the settled doctrine that an adoption of the common law in general terms does not require, without regard to local circumstances, an, unqualified application of all its rules; that the rules, as declared by the English courts at one period or another, have been controlling in this country only so far as they were suited to and in harmony with the genius, spirit and objects of American institutions; and that the rules of the common law considered proper in the eighteenth century are not necessarily so considered in the twentieth. “Since courts have had an existence in America,” that court said (p. 708), “ they have never hesitated to take upon themselves the responsibility of saying what are the. proper rules of the common law.”
And the Virginia Supreme Court of Appeals, in
Hanriot
v. Sherwood,
The supreme court of Connecticut, in
Beardsley
v.
Hartford,
“ This means that no law can survive the reasons on which it is founded. It needs no statute to change it; it abrogates itself. If the reasons on which a law rests are overborne by opposing reasons, which in the progress of society gain a controlling force, the old law, though still good as an abstract principle, and good in its application to some circumstances, must cease to apply as a controlling principle to the new circumstances.”
The same thought is expressed in People v. Randolph, 2 Park. Cr. Rep. (N.Y.) 174, 177:
“ Its rules [the rules of the common law] are modified upon its own principles and not in violation of them. Those rules being founded in reason, one of its oldest maxims is, that where the reason of the rule ceases the rule also ceases.”
It was in virtue of this maxim of the common law that the supreme court of Nevada, in
Reno Smelting Works v. Stevenson,
Numerous additional state decisions to the same effect might be cited; but it seems unnecessary to pursue the matter at greater length.
It results from the foregoing that the decision of the court below, in holding the wife incompetent, is erroneous. But that decision was based primarily upon Hendrix v. United States and Jin Fuey Moy v. United States, supra, and in fairness to the lower court it should be said that its decision was fully supported by those cases.
In the
Hendrix
case the opinion does not discuss the point; it simply recites the assignment of error to the effect that the wife of Hendrix had not been allowed to testify in his behalf, and dismisses the matter by the laconic statement, “.The ruling was not error.” In the
Jin Fuey Moy
case it was conceded at the bar that the wife was not a competent witness for all purposes, but it was contended that her testimony was admissible in that instance because she was offered not in behalf of her husband, that is not to prove his innocence, but simply to contradict the testimony of government witnesses who had testified to certain matters as having transpired in her presence. The court held the distinction to be without substance, as clearly it was, and thereupon disposed of the question by saying that the rule which excludes a wife from testifying for her husband is based upon her interest in the event’ and applies without regard to the kind of testimony she might give. The point does not seem to have been considered by the lower court to which the writ of error was addressed (
Judgment reversed..