O'Loughlin v. People

Mr. Justice Hilliard

dissenting.

I am in accord with the views expressed by Mr. Justice Burke, and feel it proper to express my admiration of his masterly exposition of underlying principles of our Anglo-Saxon heritage of liberty within the law.

But I dissent for the further reason that in my opinion it was error to permit the husband of the accused to testify. In the circumstances of this prosecution he would *401 not have been a competent witness at common law and our statute likewise should be held to have precluded him. “The general rule at common law,” we said in Dill v. People, 19 Colo. 469 , 36 Pac. 229 , “was that neither husband nor wife was a competent witness for or against the other. But the rule had this exception, that if either was prosecuted for a felonious crime or high misdemeanor involving violence to the person of the other, the party against whom the crime was committed was a competent witness in behalf of the state.” See also §303 Underhill’s Crim. Ev. (3d Ed.); 28 R. C. L. 482, §68.

Our statute (§6563, C. L. 1921) reads: “A husband shall not be examined for or against his wife without her consent, nor a wife for or against her husband without his consent; nor shall either during the marriage or afterward be, without the consent of the other, examined as to any communication made by one to the other during the marriage; but this exception 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.”

In this state, following the decisions of the courts of Iowa and Nebraska, we have construed the statute to the effect that in prosecutions for sexual crimes the injured spouse is a competent witness against the other. Wilkinson v. People, 86 Colo. 406 , 282 Pac. 257 , where the husband was charged with rape, and Schell v. People, 65 Colo. 116 , 173 Pac. 1141 , where the prosecution was for bigamy. The basis for the holding that the wife was a competent witness in the Schell case was that bigamy is a “crime against the wife within the meaning of the statute.” The court adopted the rule laid down in State v. Sloan, 55 Ia. 217, 220 , 7 N. W. 516 , where it was said: “In our opinion, if the defendant is guilty of bigamy, he committed a crime against his wife. We think that she was a competent witness.” In the Wilkinson case, grounded primarily on the holding in the Schell case, and fortified by decisions from Iowa and Nebraska, we held that rape *402 perpetrated by the husband upon his wife’s daughter by a former marriage, constituted a crime against the wife, and therefore the wife could testify. In the opinion of the court in the case at bar much is made of the language in the Wilkinson case referring to the wife’s daughter, etc., but the crime against the wife which made her a competent witness was not that he had outraged her daughter, but that he had had carnal intercourse with another woman. A reading of the Iowa and Nebraska cases makes that point clear, and it is to those courts alone we have resorted for precedents. The decisions of those states, and our own, are contrary to the weight of authority, for nearly all other courts, including the Supreme Court of the United States, have held otherwise. State v. Kniffen, 44 Wash. 485 , 87 Pac. 837 . In that case the court said: “While much may be said in favor of the position that bigamy, adultery and kindred crimes are committed by one spouse against the other, yet the weight of authority seems to be opposed to that rule. ’ ’ But my purpose is not to discount our own decisions, and if similar facts were here presented I should consider them controlling. What I protest is the extension of the doctrine, for I conceive that the opinion of the court does violence both to the common law and the statute. Iowa has refused to extend it beyond what her courts term “sexual crimes,” as for example where the charge was that of forgery by the husband of the wife’s name. Molyneux v. Wilcockson, 157 Iowa 39 , 137 N. W. 1016 . Indeed the restriction has been extended even to sex crimes, as in State v. Wilcox, 185 Iowa 90 , 169 N. W. 646 , where it was held that the wife was not a competent witness where the crime is that of attempted rape. After a discussion of the rule, the reasons for it, and its limitations, the court said: “But suppose that, to now, it has never been held that the wife may not testify on a prosecution of the husband for assault with intent to rape. There must be a first time for right and reasonable decisions. For that matter, it may be said that no decision that the testimony *403 here is receivable has ever been made, unless holding that snch testimony is proper on prosecutions for incest, adultery, or bigamy settles that it is proper on a charge of assault with intent to rape.” It would be profitable for this court to keep in mind that until the announcement of the judgment here it has never been held in any jurisdiction under a statute similar to ours, or under the common law, that where the charge is murder the husband or wife of the alleged perpetrator is a competent witness. I quote further from the "Wilcox case: “Of course, adultery by the husband is a crime against the wife. And of necessity, incest and bigamy include adultery. That fact alone is a sufficient reason why holding that adultery, bigamy, and incest are within the exception is no warrant for holding that an intent to commit which, if consummated, would involve adultery, brings the case within this exception. How can it, in reason, be said that a naked intent to ravish a third person is' ‘a crime committed against’ the wife? The State concedes the exception applies to nothing but sexual crimes. How can it be maintained that an unaccomplished intent to rapéis a ‘sexual’ crime? * * * If the words, ‘prosecution for a crime committed against the other,’ apply to a prosecution for -assault with intent to commit rape, it must be because the words of the exception should be read, ‘ a prosecution for an act which is in any way offensive or; injurious to the other. ’ If that be the true interpretation, then, if the husband commit murder, the wife may testify against him. Surely, it must deeply shock, hurt, offend, and, in a sense, injure any good woman to find herself married to a murderer. It is sufficiently indicated in our own decisions that this is not the correct construction of the statute words, because, for one thing, we held in Molyneux v. Wilcockson, 157 Iowa 39 , that the husband’s forging the name of the wife did not bring the prosecution within the statute exception.”

When it is reflected that, Iowa and Nebraska excepted, we stand alone in holding that sexual crimes constitute *404 'an exception within the meaning of the statute, it occurs to me that the statement of the Iowa court (when the logical extreme was presented to it) that “there must be a first time for right and reasonable decisions,” should make favorable appeal here. Otherwise, it would appear, we are committed to the eventual judicial repeal of a statute which is found in substance not only in the laws of the several states but is grounded on the common law itself.

In State v. Woodrow, 58 W. Va. 527 , 52 S. E. 545 , 2 L. R. A. (N. S.) 862, a husband and father was tried and convicted on an indictment charging murder of his child. The child, aged fourteen months, was in its mother’s arms when the husband shot it, the bullet also wounding the mother. In reviewing the point the West Virginia court held that the crime was not against the wife in the sense of the common law rule and the West Virginia statute (Code W. Va. 1899, Ch. 152, §19), and ordered a new trial. The West Virginia court emphasizes that judicial proceedings should not be colored or swayed by emotion, that hard cases should not be permitted to make bad law. I quote: “The sole question in this case is, Does this case come within the exception to the rule; that is, was the prisoner’s act of shooting the child a crime against the wife ? It was not violence to her person. It was not a crime against her person corporeally. Such it has to be under this exception. It is true that there has been considerable difference of opinion as to what instances fall within this exception. Some cases hold that bodily violence to the wife is not the only case under the exception. For instance, cases of bigamy, and other cases, have been held to fall within the exception. The books must be resorted to for full discussion. It will be found that, though cases where no actual violence constituting assault and battery upon the wife have been held to fall within the reason of the exception, yet they are cases which directly affect the legal right of the wife, rights going along with her personality- or person, as an indi *405 vidual separated from all other persons. However, I can safely say that the great bulk of American decision is, that to come within the exception, the case must be one of personal violence to the spouse. Bassett v. U. S., 137 U. S. 496 , [34 L. ed. 762, 11 Sup. Ct. Rep. 165]; Baxter v. State [34 Tex. Crim. Rep. 516], 53 Am. St. R. 720 , [ 31 S. W. 394 ]; Crawford v. State, 67 Id. 829 [ 98 Wis. 623 , 67 Am. St. Rep. 829 , 74 N. W. 537 ] ; Commonwealth v. Sapp, 29 Id. 406 [ 90 Ky. 580 , 29 Am. St. Rep. 406 , 14 S. W. 834 ], And I repeat that those cases, like bigamy and others that do not actually involve violence to the person, which are held within the exception, are cases where the wrong is, to the individual particularly and directly injured by the crime for which the husband is prosecuted. Dill v. People, [ 19 Colo. 469 ], 41 Am. St. Rep. 254 [ 36 Pac. 229 ]. But the instances mentioned—I mean the cases—not requiring actual violence to persons, are confined to a few states. The weight of authority is otherwise, requiring personal violence or a restraint of liberty to the wife; restraint of liberty being a wrong to her person. Bassett v. U. S., 137 U. S. 496 . The act must touch her person, or her personal individual right, as a person distinct and individualized from the balance of the community, to come under the exception spoken of. An enormous wrong this murder was to the mother in a moral point of view, in an emotional point of view, in a sentimental point of view; in a pathetic point of view, under emotions of the heart which move human beings, owing to the relation of mother and child. We are apt to consider this terrible crime as a greater one against the mother than to. any other living human being; still, in a physical point of view, the homicide did not touch the person of the wife, but was only a crime against her as one member of the community; I mean in the eye of the law. Remember that Woodrow was tried for killing the child, not for shooting his wife. . On a trial for shooting his wife she could, under the exception stated, give evidence against her husband.”

*406 The Woodrow case was followed in Grier v. State, 158 Ga. 321 , 123 S. E. 210 . There the father shot at the mother but killed their son. The conviction was reversed because the wife was permitted to testify against her husband. I have found no case of homicide by one spouse, even though it be of one dear and near to the other spouse, holding that the spouse not accused may testify against the other. However shocking the crime it does not operate against the innocent spouse in the sense held in this, and two other jurisdictions to obtain in sexual crimes. In the nature of things the relationship of the deceased to one of the spouses has no bearing upon the offense of the spouse who commits murder. The relationship is but incidental, whereas, as we have held in relation to sexual offenses, the innocent spouse is injured in an especial and personal way.

I do not wish to be thought to have overlooked Dill v. People, supra, which may be believed to have extended the rule beyond sexual crimes and, therefore, to be in point here. In that case the court justified the wife’s right to testify on the ground the charge of perjury grew out of his false affidavit for publication of summons in a divorce action against her. The case is capable of reconciliation with the Iowa and Nebraska cases and our Schell and Wilkinson cases, or, at least, is clearly distinguishable from a prosecution for homicide. While not a “sex” case it directly involved the matrimonial relationship which the husband had attempted by perjury to injure or destroy. His conduct affected the wife directly and in her own person; in a sense it fairly involved “a crime committed by one against the other.”

We have seen that in other jurisdictions the wife was not allowed to testify against her husband in cases where their child was the victim of the homicidal act. The decisions were based on statutory provisions similar to ours and were in harmony with tire common law. These decisions, I submit, are sufficiently persuasive to justify a reversal of the contrary holding below, in what to this court *407 is a case of first impression. Nevertheless the court has here announced the rule that if the slain child is not of the issue of both spouses, then the spouse who is the child’s parent may testify where the other is charged with the homicide. It is my belief that such holding violates the cardinal purpose of the statute, malees nugatory that which the legislature has determined is in the interest of public policy, and allows evidence from a source denied at common law.

We have been zealously observant of the portion of our statute which disqualifies one spouse from testifying against the other in civil actions. Bradbury v. Brooks, 82 Colo. 133 , 257 Pac. 359 ; Jasper v. Bicknell, 68 Colo. 308 , 191 Pac. 115 . I do not think we should be less so here. A. better disposition of the point would be to adopt the modified Iowa doctrine, the decisions of whose court we have hitherto followed in respect of this statute, and in criminal prosecutions limit the exception to sex cases, as that court has now done. I regret that this cause was not availed of for such a decision in this jurisdiction.