*1 permit the use respondent’s general of its objec- facilities November organization posting when other are signs means tion to the of these readily available.” made clear. In the face of this fact the posting signs proceeded profusely and Republic Corp. R. Aviation L. v. N. deliberately. B., 324 U.S. 65 S.Ct. 89 L.Ed. the court characterized as flagrant This respondent’s violation of ruling holding in a definite the board’s policy against improper announced Peyton Packing Company case, 49 signs during use working of these time reading N.L.R.B. follows: respondent’s premises, constituted proper layoff basis for the of those em- Act, course, pre- does not ployees signs who exhibited the after No- making employer vent an from hold, therefore, vember 5. We covering enforcing reasonable rules layoffs were lawful. For reasons these employees the pany com- conduct of we refuse to enforce the order and we set Working is for time. time it aside.4 work. province within the It therefore employer promul- of an Order refused enforcement and set gate prohibiting and enforce a rule aside. working during
union solicitation pre- hours. Such a must be rule sumed be valid the absence adopted evidence that was for a discriminatory purpose. less It is no ¡outside working true that time work,
hours, after whether or befpre during periods, luncheon or rest employee’s an to use as time Ivey WYATT, Appellant, James re- without wishes unreasonable although employee straint, is on property. company UNITED America, STATES It is therefore Appellee. province of an em- within ployer promulgate and enforce No. prohibiting rule union solicitation Appeals United States Court of working employee an outside of Fifth Circuit. hours, although company proper- Jan. ty. presumed a rule must Such Rehearing Denied Feb. impediment to to be an unreasonable self-organization and dis- therefore criminatory of evi- absence special circumstances dence that in order to make rule necejssary discipline.” production or
maintain impressed by board’s We are respondent had no rule
assertion that posting
prohibiting of notices on property.
personal The events herein- leading laying up to recounted before employees on November of 155 off they refused remove notices “because property personal their language (to use plant” the board’s brief), in his establish that on
counsel 100(e).
4. 29 U.S.C.A. § *2 Farmer, Dothan, Ala., J. Hubert appellant. Ralph Daughtry, Atty., M. U. Asst. S. Davis, Atty., Montgomery, Hartwell U. S. Ala., appellee. RIVES, TUTTLE, Before
BROWN, Judges. Circuit RIVES, Judge. Circuit appeal judgment This is from a of con- slavery, viction for white 18 U.S.C.A. questions presented 2421. The are thus appellant’s stated in brief: May “1. a conviction be had charge a defendant on the commonly slavery’ known as ‘white judicial on his extra confession un- by proof corroborated aliunde transporta- delicti as to the charged tion element of the offense ? May “2. the wife of a defendant compelled by Judge the District testify against her husband?” charged, substance, The indictment that on or December knowingly transport defendant did in in- terstate commerce from Geor- gia, Dothan, Alabama, woman, Mary Byrd, purpose Kathleen prosti- for the tution.
Leroy Mills
testified that
December
bellboy
was a
the Hotel
Alabama;
Martin in
13 he made
calls
December
several
occupied
then
the woman
Room
defendant;
on one of
those
him,
calls,
“Boy,
defendant asked
how
said,
I
“And
is business?”
‘What kind
that,
And then he
of business?’
‘We
get
working,
you
anything,
and if
are
Q.
right,
know.’
All
to let us
did—
say anything
pres-
did the woman
in his
defendant,
promises
Yes,
or
threats
not? A.
ence
time
at that
voluntary
says,
state-
made a
says— Q. Speak
She
loud? A.
defendant
out
said,
objected
ment
him.
business?’
‘You haven’t
‘Yes’m,
*3
ground
morning,
I
that
but
to that statement on the
this
I had two
”
The
proved.
had
been
next
delicti
On this
down.’
have
them
turned
objection, and Hilson
asked,
room,
“You
overruled
court
the woman
to the
visit
yet,”
he
testified:
and
had
business
haven’t
whereupon
“No,”
the defend-
sir,
answered
me,
he
“A. He stated to
that
awhile,
going
for
out
“We are
purchased
ant said:
tickets in Co-
these
sure
you
to be
business
going
and if
lumbus, Georgia,
to
was
and
us;
after
back
we will be
for
Laguna
Byrd’s
hold it
to
Beach to see Mrs.
while”;
he
back
later
went
mother,
just stopped
a little
that
and he was
over
whereupon
carry coca-colas,
follow-
to
in Dothan.
ing
ensued:
conversation
“Q.
you
rode
Did he tell
who
see,
now,
Well,
he said
let’s
“A.
Georgia, Dothan,
Columbus,
from
Alabama,
to
time,
me how
he asked
this
on
he
those
on
tickets that
right.
night boy
he all
at—was
purchased
said he had
young,
'boy
‘No,
and
said,
is
Georgia?
I
this
A.
said
Mrs.
He
he and
boy
him,
old
just
fool with
don’t
Byrd accompanied him Dothan.”
to
‘Well,
tonight.’
said,
He
back
will be
you
Mary
Byrd
Kathleen
that she
testified
him,’
you
see
a man when
know
formerly
Mary
known
Kathleen
you
said,
split
with
will
fair
he
‘We
Mary Wyatt,
Byrd,
she is now
K.
that
split
that,
than
we will
better
—’
the defendant is her husband.
that
“Q.
A.
catch
last.
I didn’t
that
following then occurred:
you,’
split
divide
with
will
fair
‘We
please
“Mr. Farmer: Your honor
fair, you know,
money equal or
may I—I
want
don’t
to
out of
be
meant;
I under-
what he
that
just
order,
I
remind
to
want
what he meant.
stood
your honor under —I withdraw—
you
“Q.
how it was
he tell
Did
just—
sixty.
Forty
you? A.
divided
along.
“The Court: Get
forty
you
sixty
“Q.
to
Is that
“Q.
you
But
are now married to
forty
you?
me
A.
is
to
It
defendant?
sixty to him.
may say
honor,
“Witness: Your
I
right.
“Q.
And—
All
A.
see.
I
something ?
says,
in-
business
he
‘If
then
And
Yes,
“The Court:
ma’m.
better,
creases,
we will
will do
my pos-
”
I have here
“Witness:
fifty fifty.’
split
my marriage
session
I
license that
man
that the
further testified
He
present
court,
like
would
to the
noisy
he went to
became
woman
testify
I
refuse
this case
quiet,
in the
to ask them
room
against my husband.
said, ‘How
presence, “She
defendant’s
right.
“The Court: All
Is that
business,
busi-
there ain’t no
ground
your
refusing?
for
”
today.’
just
‘No,
;
said,
slow
is
I
it
ness’
ground
my
“Witness:
is
for
he
Henry
Hilson testified that
W.
refusing.
Dothan,
City
Ala-
for the
a detective
objection
“The
Your
Court:
bama;
he arrested the
overruled.
and found
December
“Mr. Davis: Let
seeme
it.
Greyhound
Southeastern
two
person
minute;
Court:
showing
Just
were
lam
stubs
bus
Lines
seeing it,
interested in
12, 1957,
trans-
doesn’t
December
issued
any difference
Columbus, Georgia,
make
in a White
Slave
portation
case,
Act
Traffic
cheeked
Alabama;
no
he made
law
Dothan,.
mon
victim.
exist
we would
case,
that that
refusing
it would
defendant,
she is
Shores
It
Courts in
“Mr.
right
law
where the
in a White
not
lunch.
Varner:
Court:
She
privilege
to refuse to
like to
be a little
is no
if
actually
testify,
will
case, most
The United
I am
offer to
Your
wife
ground
court
testify.
Slave
married to
safer
not
*4
honor,
refuses—-
gave
try
Traffic Act
interested
recently,
old
to
did not
I
alleged
a wife
States
prove
think
that,
com-
wife
this
Wyatt registered
that he had
after
ceeded to
evening, they took a
he referred to as
and
Kathleen
Martin,
the bus tickets to
Columbus, Georgia,
Greyhound
ried on November
[******]
“A.
they
they
Mary
He
and
were
Byrd.
Laguna
Bus Station to the
arrived at Dothan that
stated on December
bought
Mary
Kathleen
roomed at
for both of
‘Kitty’ Byrd,
—had
Beach,
Kathleen
cab
bus and
Byrd,
Room
purchased
from the
and that
Florida,
whom
them,
Hotel
Mary
Byrd
pro-
left
they
or not
married
He
is
stated
in whether she
that
remained in that
night
him,
refusal
far
to
room that
married
and the
after-
next
concerned,
they
quarrel
because it
is
noon
to
had a
about his
drinking,
go
difference.”
make
and that
to
doesn’t
she left to
Dothan,
the home of an
aunt
and
she was
that
then testified
The witness
again up
he
see her
until
that
didn’t
1957;
that
on December
in Dothan
the time
that
He
interview.
same
came on the
the defendant
she and
purpose
stopping
stated that the
Georgia;
that the
bus from
planned
in Dothan was
he
that
had
bought
ticket,
her
but that she
defendant
gave
drinking,
to
some
do
and that he
money
purchase
her
him
go
didn’t want to
to the home of his
they
Martin
ticket;
came to the
that
mother-in-law,
Rogers,
Mrs.
at La-
registered for herself
that she
Hotel and
guna
drinking,
Beach while he was
Mrs. James
as Mr. and
and
stop
and
he
that
had decided to
at
Wyatt;
to Room
of them went
that both
in Dothan
hotel
while—to wait
Hotel;
stayed
that she
the Martin
at
go
until he was in condition to
on.
and then
minutes
went
a few
pretty
And that is
sum-
reg-
much the
Dothan, where she
Hotel in
Houston
mation of
he told
what
me then.
Byrd.
Mary K.
testified
She
istered as
I
into
recognize
went
some
Leroy
details.
Mills
not
she
that
present in the Mar-
was not
and that
“Q.
you
Did he—did he—did
ex-
during any conversation be-
Hotel
tin
to him
bus
hibit
stubs
—these
bellhop, “only
and a
the defendant
tween
marked Government’s Exhibits num-
boy called it a disturbance
when
bers
and 2? A.
I did.
having
argument.”
an
when we
May I
“Mr. Davis:
have them
Jr.,
Lili,
testified
W.
that he
John
please?
Yes,
A.
I did.
Agent
the F.B.I. stationed
Special
“Q.
say
he
What did
Dothan,
December
that on
at
those ? A. He said that
were
these
voluntary
a free and
made
the defendant
pur-
to the tickets
he
stubs
that
had
again
The defendant
to him.
statement
objected
“* *
for he
chased
his wife
and
to Dothan.
ground
that
on the
proved
“Q.
you
has
Did
tell
Government
he
who this wife
Mary
Byrd—
case.” The
overruled
court
A.
Kathleen
delicti
was?
Wyatt,
objection,
Mr. Lili testified:
and
he said.
interviewed him
following
again
day,
me
He told
at that time that
on Decem-
“A.
living
apartment
at
and
been
an
ber
time he
that
told
had
me
he
Apartments
apart-
Riverview
he
resided at the
that
804-A
City,
Mary
Byrd,
that
mar-
ment of
Kathleen
and
he was
and
Phenix
previously
carriage
justice,2
men-
that he—he had
does not
that
end of
appear
tioned at the
the interview
in this case.
not married
on the 14th that he was
question
posed
A more difficult
Byrd,
Mary
me
he
Kathleen
told
inquiry. “May
the second
the wife of
that
on the interview
15th
compelled by
defendant be
the District
living
apartment
he had been
at an
Judge
testify against
her husband?”
City,
Phenix
at 1907 Avenue A in
present record,
On the
we must assume
Mary
Kathleen
which was owned
assume,
that she was his wife. We shall
together
Byrd,
they
and that
left
also, though
clear,
it is not
the de-
12, and
December
afternoon of
objected
testimony,
fendant
her
purchased
bus tickets
he,
wife,
as well as
claimed the
proceeded
and that
privilege.
assuming,
marital
So
re-
night
they stayed
the Hotel
case
cent
of Hawkins v. United
drinking,
got
Martin,
that he
79 S.Ct.
would necessitate
night he
relations
had sexual
reversal, but for the fact
in Haw-
her,
next
then she
left
kins the wife
victim
here
* *
day
she is. That distinction is vital.
It
*5
testify and no
did
The defendant
ground upon
the
which the District Court
were offered in his behalf.
witnesses
present
ruling
in the
case based
“that
its
gave
privilege
the old common law
that
Admittedly,
can
a conviction
right
testify
a wife the
to refuse to
did
uncorroborated
not be sustained on the
not exist in a White Slave Traffic Act
defendant.
or statements of a
admissions
case,
alleged
where the wife is the
vic-
however,
sufficient,
if
some
there
It is
be
tim.”
confession,
independent of a
evidence
confession,
which, when
with the
privilege
taken
against
testify
The
not to
finding
jury
defend
will warrant the
disquali
one’s husband or wife and the
guilt beyond
doubt.1
ant’s
a reasonable
by
relationship,
marital
Pro
as
fication
proof
There was sufficient
of the
Wigmore observes,
fessor
“travel
to
admission of the
delicti to authorize the
gether,
judicial phrasing,
associated in
statements
admissions.
defendant’s
beginning
from almost the
of
re
their
3
journey.” Indeed,
corded
no distinction
jury
such
The
could believe
recognized,
between the two need be
testimony
parts
a witness’
of
Supreme
as the
Court ruled in Hawkins
credible,
parts,
and disbelieve other
found
States, supra,
v.
page
United
79 S.Ct. at
inferences
all reasonable
could draw
138:
opinion,
evidence.
our
“ * * *
clearly
sustain
evidence was
sufficient to
The
does
Government
verdict,
suggest
authority,
and no harm was caused
not here
rea-
experience require
wholly
move
defendant
his counsel’sfailure to
son
us
29,
judgment
acquittal.
reject
forbidding
Fed
of
Rule
to
spouse
the old rule
one
Procedure,
testify against
18 U.S.
eral Rules of Criminal
the other.
motion,
modify
of such
absence
a
In the
ask
we
rule
It does
C.A.
reviewed
will be
evidence
that while a husband or
so
wife
only
prevent
compelled
mis-
manifest
a
will not be
Court
Cir., 1954,
States,
416;
Markman,
5
210
v. United
States
1. Masse
F.2d
United
v.
2
Cir.,
418; Vogt
States,
Cir., 1952,
v. United
5
309 supra, leading man, American other, a will against either Nothing principles voluntarily. statement of basic so to do free such supports which the rule 13 Pet. rests. cases Court’s in this page 10 compelled and L.Ed. 129.” between distinction em- testimony, general voluntary case reaffirmed the common Bow- rejected v. Stein l rule4 aw husband phatically extent Appeals tify charged opinion of Court where of the she was with burn 4. The general only ing emphasized his home.2 exception startling involved “Even more is the case where and not rule exceptions step seven-year-old “With certain took his case: in that here, daughter ostensibly hearing home, it was into the no near their which general woods have chore, neither law common some farm there rule competent conviction, ravished wife was Ilis her. based nor husband largely testimony testimony give for or as witness child’s mother, any case, or criminal civil reversed. The court the other ** supplied.) Haw interpreta (Emphasis it would be too narrow an Cir., exception tion to confine the to cases kins United physical wrong an abundance whore against there was Out F.2d copies person caution, spouse, examined tho briefs it should of such of the least be the record confined to tho Supreme wrong directly found Court cases where Clerk of vital ly conjugal rec relation, case. affected the Hawkins available in the which rape objection (p. 41) of tho that the child ord shows did not.29 The court object general: felt “Mr. Summers: relaxation of the rule your Honor, charges easy lead to testimony, because unfounded as an way bring of Hawkins’ The briefs wife.” termination of the general marriage rule relation.30 *6 counsel discuss and exception. Audley, “24. See Trial mention the do not Mervin Lord 3 opposition 401, admitting the brief in How.St.Tr. (1631), 414 Government’s grant testimony such party writ concluded as follows: tho ‘where the wife is the circumstances, grieved, con “Under all these we and on whom the crime is raise the committed.’ clude xhat case does not question wife broad as to whether a “25. Bentham has his own curious ex- injured party ivho petent com the is a not planation ‘necessity’: of the ‘A cause against her husband.” witness many between Doe at Ux aas as admits fees (Emphasis supplied.) In on the its brief cause between Doe and Roe. a merits, case the Government treats the nobody case where there is to swear testing general rule, as Ux, admitted, for if Ux were not there exception length does discuss the at some canse, would be no no fees. Rule:—ad- as follows: Bentham, mit her evidence.’ Rationale important where most situation (Bowring’s Ed.) Judicial Evidence regarded marital concord is ficienx mony insuf an VII, p. Vol. 481. ground spousal excluding for testi parte [Mo.App.], “26. Ex Dickinson 132 wrong is where the was committed (Mo.). S.W.2d 245 directly against spouse. an Here State, “27. Overton v. 43 Tex. 618. exception was made from earliest McMullins, v. “28. State 156 Miss. 126 upon time,24 but not the basis that the So. apply. reason rule for the did not In Cargill State, “29. v. Okl.Cr. 25 220 P. stead, wag it ‘ne said that there awas 133], [35 64 A.L.R. cessity’ receiving spouse’s testim argument rejected exception 5 ony.2 “30. This But limited had been was three years (with Audley’s later hundred earlier some liberalization some in Lord in supra. Case, jurisdictions) corporal 3 cases of vio How.St.Tr. directly against spouse defendant, charged lence where tain acts re with cer- —a depravity incongruous wife, led to toward striction which some his unsuccessfully urged charged a his results. Where ‘That son was years forging name, privilege old, wife’s with his his now become he himself decayed; against testimony uph and the her adverse old and his and, one would upheld lands, young privi husband; and the other a eld.26 Another ease therefore, testimony lege charged where defendant of them stealing property, own, servants added to his wife’s and else and their their living plotted they had where it held that a his destruction husband ” separately his wife tes could not death.’ against Anyone may each unavoidable vision. wife think, significantly, privilege it see that an a absolute in other, but, exception rule here husband of the to close mouth noted the testimony against wife in him would pertinent: injure in a her vested license to “ * * * yielded ex- The rule immunity; complete secret with cases, types ceptions certain saw, lawyers this much the common Thus, in Stein this Court however. willing Just were to concede. Bowman, 10 L.Ed. 13 Pet. went, how in con- far the concession general recognizing ‘the while cases, precisely crete set- was never nor wife a rule neither husband given varying tled. It was definition against the for or can be witness other,’ times; certainly ex- at different it does rule noted that the involving corporal tended to causes apply commits ‘where husband certainly wife; violence to his person of an offence wrongs did not extend done to all Haw- page 221.” 13 Pet. wife.’ Wigmore, wife.” 8 Evidence supra, 79 S.Ct. kins v. (3rd 1940), 2239, p. page 137. Consistently ap- doubt, with such exception least has existed argues: pellant recognized when it was since bearing some resemblance case admitting “But sake of Audley’s case, Lord “white slave” modern argument exception such an There, Trial, 3 How.St.Tr. prevails, now there have been cases Audley employed Lord notorious possibly exception where would instruments as his nefarious his servants apply violations, in Mann Act wife, rape and stood while brought where the defendant his comitiands. executed debauchery prostitution or enforced by abductions, beatings, and other the extent as to There been doubt has aggravated assaults. Wigmore exception. As Professor of the says: such “But no situation exists *7 indeed, Necessity, fact, of this case. As a “The notion matter of the might commendably testimony a been have is to the the effect that doing one; necessity provided transporta- the of woman broader justice her own general, persons Georgia other tion from to to testimony Alabama; spouse’s in- was
when the had as she say dispensable, bell-hop been least much would have to to the lawyers great. any prospective ap- as But the common customers as the ground, eyes upon pellant; although kept their here and she and survey might appellant to not allow their such time did range contemplating marriage, of immediate been she exceed the a interesting Incidentally, give something note it is is to of these of One Wigmore disap- chase, Professor of while to the victim start to follow general rule, by only, respect proves he concedes of the him certain rules and to may application feelings may sometimes be far its so as his be. This shooting quail unsportsmanlike complicates sport, as as and adds zest for ground. by increasing pursuers the skill “ * * * exemplifies general required them for art expedient success. The sportsmanship which, convicting spirit as else- of a man out of permeates seen, (let say) so where rules mouth of his wife is us Anglo-Nor- procedure poor stoop inherent from our sport, and we shall not process litiga- theory The ancestors. man is the it. Such the sentiment judges agree) (many sportsmanship.” learned a is tion sport; Wigmore, (3rd kind of and certain 1940), rules noble Evidence play overstepped. 2228, p. should never be of fair wife; factually so that is incorrect. de- The time not judgment fendant move time did for a of ac- possible offense at quittal and one his motion was denied. With not have been such opinion, pe- correction person wife.” of his rehearing tition for legally and husband, A bound Denied. wife, who morally protect his prostitute, can helps her be a instead argue not be heard im depraved manifest he. That is a transporta possibility. The fact that certainly marriage occurred before tion disqualify the the more would favor settled The law is wife.5 now long de exception line of of the Act6 under this same cisions contrary.7 early two cases to ALBINA & WORKS, ENGINE MACHINE INC., corporation, Appellant, Hawkins Supreme in the Court many case, supra, refers to none of just pertinent LINE, corpo- cases mentioned MAIL LTD., AMERICAN ration, Appellee. repudiate them. no evinces intent No. 15829. Finding in the reversible error no record, judgment is Appeals United States Court of
Affirmed. Ninth Circuit.
Jan. Rehearing. Petition for On Rehearing 10,1959. Denied Feb. PER CURIAM. original opinion our part:
“ * * * opinion, In our clearly sufficient
evidence verdict, harm and no sustain by his the defendant caused judg- *8 failure to move
counsel’s 29, acquittal. Fed- Rule ment of of Criminal Procedure Rules
eral U.S.C.A.].”
[18 Williams, Williams, United v. D.C.Minn. States States v. 5. D.C.Minn. United 1944, F.Supp. 375, 380; Wigmore, 375, 380; 1944, F.Supp. 55 8 55 Wilhoit v. 255, Hiatt, 1940, 2239, pp. D.C.M.D.Pa.1945, F.Supp. Evidence, 664, 60 3rd 665; States, Cir., 256, 1947, Devine v. 10 and United notes 5 992; Hayes States, 163 F.2d v. United Rispoli, v. D.C.E.D.Pa. States 6. United 1948, Cir., 996, 997; 10 168 F.2d Shores 271, 273; 1911, Cohen v. United F. 189 States, Cir., 1949, v. United 8 174 F.2d 23, 29; Cir., 1914, States, 214 F. 9 839-841; 838, Annotation, 11 A.L.R.2d Bozeman, v. D.C.W.D. States United 656-658; 646, Accord., Alford v. Ter Pappas 432; Wash.1916, 236 F. v. ritory Hawaii, Cir., 1953, 9 205 F.2d Cir., 1917, States, 665, 9 241 F. United 616, 619. States, Cir., Denning 666; v. United 5 465, 466; 463, Gwynne, F. States Cohen 247 D.C.E.D.Pa. States, Cir., 995; 5 F.2d 209 F. Johnson v. United v. United Mitchell, Cir., 140; United States v. 221 F. 1009; 1943, 137 F.2d Cir.,