O'Loughlin v. People

Mr. Justice Butler

concurring.

I concur in the decision and in the opinion of the court. Two matters, however, seem to deserve further consideration ; the opening statement of the district attorney, and the admission of the husband’s testimony.

1. The district attorney’s statement.

To justify a reversal on the sole ground of an improper and reprehensible statement by counsel, it must be clear to the court that the offense was so flagrant and its probable results so harmful that an instruction by the court to disregard it would be unavailing. That does not seem to be the case here. The oath taken by jurors in criminal trials binds them to render a true verdict “according to the law and the evidence.” The district attorney took pains to explain to the jury that the purpose of the opening statement was to outline the facts that the state would “attempt” to prove. He told them that the court would instruct them that his statements were not evidence and were not to be considered by the jury as evidence. He expressly cautioned the jury that what he was about to say in his opening* statement was not evidence. The court instructed the jury as the district attorney predicted. The court held that the offered evidence of the defendant’s statement was inadmissible. In announcing the ruling, the court took pains to avoid characterizing the rejected statement as- a confession, but guardedly referred to it as “alleged admissions, or confessions, or something* of that sort.” When the court an *387 nounced its ruling, counsel for the defendant made this request: “We want the jury instructed, if your Honor please, as to why the evidence [not the confession, but the evidence] is not going to come before them.” In response to such request, the court told the jury that the main reason for excluding the evidence was because the defendant “was kept up unreasonable hours in the night to be quizzed.” It is evident that counsel made the request because he believed that the statement of the reason would be of benefit to his client; and it is not unreasonable to suppose that it had the effect of arousing sympathy for the defendant, for such naturally would be the effect produced. In view of the guarded language used by the court, it is unreasonable to believe that from what was said by the court the jury drew the inference that the defendant had confessed that she committed the crime, and that her confession had been withheld from them through a technicality invoked by her to escape the just penalty of the law.

The district attorney’s opening statement is not sufficient cause for a reversal of the judgment.

2. The admission of the husband’s testimony.

The common law permitted an exception to the exclusionary rule only in cases involving- violence to the person of the spouse testifying. There being no statute in West Virginia changing that common-law rule, it was applied in State v. Woodrow, 58 W. Va. 527 , 52 S. E. 545 , cited in my brother Hilliard’s opinion. The court held in that case that chapter 152 of the West Virginia Code of 1899 did not apply. In Georgia the statute permits the wife to testify against her husband, only upon his trial for a criminal offense “ committed, or attempted to have been committed, upon her person”-, hence the decision in Grier v. State, 158 Ga. 321 , 123 S. E. 210 , cited in my brother Hilliard’s opinion. Even under a statute such as ours, the Supreme Court of Washington held, in State v. Kniffen, 44 Wash. 485 , 87 Pac. 837 , that a wife cannot testify against her *388 husband on trial for bigamy. We held to the contrary in Schell v. People, 65 Colo. 116 , 173 Pac. 1141 . In the Kniffen case, supra, the court cited Bassett v. United States, 137 U. S. 496 , 11 Sup. Ct. 165, to the proposition that such a statute is but an affirmation of the common-law rule. But in Dill v. People, 19 Colo. 469 , 36 Pac. 229 , we declined to adopt that construction. We commented thus upon the decision in the Bassett case: “In that ease the court had under consideration a conviction for polygamy under the laws of Utah. The civil code of that territory was the same as our statute in respect to the examination of husbands and wives as witnesses against each other, except that our statute applies to both civil and criminal proceedings, but the criminal code of Utah was as follows: ‘Except with the consent of both, or in cases of criminal violence upon one by the other, neither husband nor wife are competent witnesses for or against each other in a criminal action or proceeding to which one or both are parties. ’ On review by the United States supreme court it was held that the wife was not a competent witness. The decision was fully warranted by the criminal code of Utah, and so the opinion of Mr. Justice Brewer declares; but he expressed the further view that the wife was an incompetent witness even under the terms of the civil code.”

Our statute provides that the exclusionary rule does “not apply to a civil action or proceeding by one against the other, nor to a criminal action or proceeding for a crime committed by one against the other.” All crimes are crimes against the public. A crime that directly affects an individual is also a crime against such individual. In Dill v. People, supra, discussing our statute, as applied to criminal cases, we said: “Our statute does not limit the right of the husband or wife to testify to criminal prosecutions for crimes involving personal violence, either actual or constructive; the language is unqualified that the husband or wife may testify against the other ‘in a criminal action or proceeding for a crime *389 committed by one against the other.’ This language is broad enough to include any crime, whether of violence to the person, or other crime committed by the husband or wife directly affecting the other. Since some private wrong or injury is included in every crime, it is evident that the word crime in that clause of the statute which permits the husband or wife to testify against the other in a ‘criminal action or proceeding for a crime committed by one against the other,’ means the private wrong or injury included in such public crime. The word must have such meaning, or the statute is meaningless. It follows that a wife is competent to testify against her husband in a criminal action or proceeding whenever she is the individual particularly and directly injured or affected by the crime for which he is being prosecuted.”

The inclusion in the statute of the words relating to a civil action is significant. To admit the testimony of one of the spouses, perhaps it is not always necessary that a right of action for damages should arise from the commission of the crime; but where one spouse commits a crime for which the other spouse is entitled to recover damages in a civil action, there can be no doubt that that crime is “committed by one spouse against the other,” within the meaning of the statute. That is true of larceny, embezzlement, seduction or rape of a minor female child of one of the spouses, a criminal act or criminal negligence causing' injury to or the death of a minor child of one of the spouses, and is true also of certain other crimes.

The defendant was charged with having murdered her husband’s child—with having caused by her criminal act the death of the child. It was a crime committed against the husband, within the meaning of the statute. He was a competent witness at the trial; not, however, because the crime was an outrage upon nature in its dearest and tenderest relations, or a crime against humanity itself, but for the substantial reasons stated above, for upon *390 substantial reasons only do courts ordinarily base their decisions.

For the reasons stated in the opinion of the court and in this opinion, I concur in the affirmance of the judgment.