10 N.Y.2d 78 | NY | 1961
Lead Opinion
The threshold question is whether a wife can testify in an action against her husband as to the presence in her home of visitors in the company of the husband. We believe that she may since the 1 ‘ communication ’ ’ was neither induced by the marital relation nor made in confidence. This is made apparent by the facts that it was made in the presence of the third parties, and that it was voluntarily disclosed by the husband to a State trooper prior to the trial.
In a statement given to the police, defendant related how he drove a few friends to Batavia where they proceeded, allegedly without his knowledge, to illegally appropriate some guns from a local shop. Upon their return to Buffalo they stopped at his house. He stated that When his wife came into the kitchen and saw the guns she told them to leave.
The wife was permitted to testify, over objection, that she arose at approximately 6:00 a.m. on the morning in question in order to get some milk for the baby. She stated that as she entered the kitchen she saw her husband and a few of his friends. When she testified that she was not sure if there were any guns, she was reminded that she told the Grand Jury that she had seen the guns. She further testified that she and her husband as well as the others later went on a previously planned picnic.
The friends testified that the defendant was their accomplice in the crime, and that the guns were taken to his house because
It is urged upon these facts that defendant, in confidence, communicated to his wife the incriminating fact that accomplices were present in the home completing the crime. Appellant argues, citing People v. Daghita (299 N. Y. 194), that their presence was the “ disclosive act ” observed by the wife. We do not agree that this disclosure was privileged.
In Daghita (supra) .this court held, and rightfully so, that acts as well as words may be the subject of communications. However, we by no means intended by that decision to circumvent the limitation of our statute (Penal Law, § 2445) that the communications must be confidential in order to be privileged, as distinguished from the common-law rule which completely disqualified one spouse from testifying against the other. (See, generally, Richardson, Evidence [8th ed.], § 457; 8 Wigmore, Evidence [3d ed.], § 2337; McCormick, Evidence [1954], § 88.)
Most jurisdictions, as in New York, have by legislative enactments substituted a privilege
The application of these decisions to the present case reveals at once the common character of the communication deemed confidential. Not only was it originally made in the presence of the friends and voluntarily repeated prior to the trial, but it seems to have been made under circumstances which would indicate that it was not originally intended to be communicated to the wife. Although we hesitate to believe that the defendant put a revolver to his wife’s head,
Moreover, the oft-stated presumption (not rebutted in this record) relied on by a majority of jurisdictions is that communications originally made in the presence of third parties are
In the Wolfle decision (supra) there is a suggestion that a communication may at times be made in confidence although in the presence of a third person. However, the court in that case concluded that the written communication by a husband to his wife was not privileged because of the voluntary disclosure by him to his stenographer who prepared the letter. This conclusion based upon the accepted rule in regard to communications in the presence of third parties was expressed in the following-language (p. 17): “ The uniform ruling that communications between husband and wife, voluntarily made in the presence of their children, old enough to comprehend them, or other members of the family within the intimacy of the family circle, are not privileged, Linnell v. Linnell, 249 Mass. 51; 143 N. E. 813; Cowser v. State, 70 Tex. Cr. Rep. 265; 157 S. W. 758; Fuller v. Fuller, 100 W. Va. 309; 130 S. E. 270, is persuasive that communications like the present, even though made in confidence, are not to be protected. The privilege suppresses relevant testimony and should be allowed only when it is plain that marital confidence can not otherwise reasonably be preserved ” (emphasis supplied).
The admission of this communication is no threat to the preservation of marital confidences and certainly no more sacrosanct than a confidence communicated in the presence of “ other members of the family within the intimacy of the family circle” (Wolfle v. United States, supra, p. 17).
The implications of a reversal would be far reaching and clearly not allied with the legislative design to abolish the common-law incompetency which found it generally distasteful to incriminate one spouse by any knowledge obtained by the other, confidential or otherwise. The instant privilege, although characterized by some as an “ extremely effective * * * stumbling block # * * to obstruct the attainment of justice ” (McCormick, Evidence, supra, p. 172), is founded on a sound public policy to promote confidence between husband and wife. Its application to the circumstances here under consideration is certainly not supported by this policy.
Accordingly, the judgment must be affirmed.
. The privilege really belongs to the spouse against whom the testimony is offered. For example, if timely objection is made, not only can the witness-spouse not be compelled to testify, but she could not even voluntarily testify to any confidential communication. (People v. Wood, 126 N. Y. 249.)
. If believed, this alone would be enough to remove the communication from the protection of the privilege. Both the majority and concurring opinions in the Poppe case acknowledged that the statute was never designed to forbid inquiry into the personal wrongs committed by one spouse against the other.
Dissenting Opinion
This conviction should be reversed because of the error committed at the trial in admitting against defendant, despite objection, the testimony of defendant’s wife as to what she saw in their home a few hours after the alleged burglary. It is not possible to affirm here without overruling People v. Daghita (299 N. Y. 194), and New York’s public policy as expressed in section 2445 of the Penal Law and explained in Daghita forbids such a change.
Defendant was convicted of grand larceny, second degree, on an indictment which charged that on August 9, 1959 he and three other men broke into a sporting goods store in Batavia, New York, and carried away several guns and some ammunition. It was part of the theory of the prosecution that during the early morning hours after the alleged crime the stolen goods were taken in defendant’s automobile to defendant’s home in
The prosecution put in testimony that defendant had furnished the car in which the stolen goods were transported and had acted as a lookout and that the guns and ammunition were taken to his home where they were placed on a kitchen table and where the culprits had a meeting. Two of the participants called as prosecution witnesses swore that during the kitchen conference defendant’s wife came into the room to get milk for her baby and, seeing the men and the guns, told the men to get. the guns out of her house. Then the wife herself was called to the stand as a prosecution witness. The court overruled the defense’s objections based on section 2445. She testified that about six o’clock that morning she came into the dark kitchen to get milk for her child and saw two of the alleged robbers there with her husband. She ordered them from the house.
In Daghita’s case (299 N. Y. 194, supra) this court unanimously rejected the same two arguments made by the People here: first, that actions of one spouse in the presence of another do not constitute confidential communications; and, second, that absence of an intent to make defendant’s actions confidential was shown by the fact that a coculprit was present when the disclosure took place. Daghita was a policeman who stole merchandise from a store he was supposed to protect. He was observed by his wife bringing the goods into his home during the night and hiding them there. On one occasion, so the wife testified, she went with her husband and his accomplice to the store and sat in an automobile while the two men brought out stolen articles. In reversing the Daghita conviction, we held (p. 199) that the term “ communication ” includes 1 ‘ knowledge derived from the observance of disclosive acts done in the
As to defendant’s associates being in the kitchen with him when the wife made her observations, it is true that comunications made in the presence of a third party are usually regarded as not privileged because not made in confidence. But confidentiality sometimes exists even in such instances (Wolfle v. United States, 291 U. S. 7, 14, 17). When the presence of the third person or persons is, as in DagMta (supra) and as in this case, part of the very fact confidentially communicated, the presence of those others cannot destroy confidentiality.
The opinion for affirmance in this court suggests that the husband’s privilege under the statute was in some way removed or waived because the wife testified before the Grand Jury (contra, see People v. Eckert, 2 N Y 2d 126, 128) and because the husband made pretrial admissions including the statement: ‘ ‘ My wife got up and saw that there were guns laying on the kitchen table. She told them to get out and get the guns out which they did.” There is nothing to show that the husband consented to his wife’s giving the Grand Jury testimony or that she then knew anything about the law of husband-wife privilege. The husband’s statement to a State trooper before trial said nothing about waiver. A waiver to be effective would have to be made at the trial and at the trial defendant strongly objected to any testimony by his wife.
Proof of the defendant’s guilt is strong but much stronger is our public policy as announced in People v. Daghita (299 N. Y. 194, supra). Founded on “ the sanctities of the marriage relation ’ ’, the rule as to nondisclosure is to be “ strictly construed ” and an error in relation to it is not technical but affects “ the substantial rights of the defendant ”.
The judgment should be reversed and a new trial ordered.
Judgment affirmed.