Spearman v. State , 68 Tex. Crim. 449 ( 1913 )

This case is before us on motion for rehearing, the case having been previously affirmed. My brethren have concluded to overrule the motion for rehearing for reasons stated in the written opinion to that effect. I do not care to review the opinion on rehearing or the former opinion seriatim but in a general way state my reasons for not concurring.

While the witness, Mrs. Stella Simms, who was formerly the wife of appellant, was on the witness stand, defendant, on her cross-examination, she being used by the State, identified her depositions taken in a divorce suit between herself and appellant. This is taken from the bill of exceptions: "This which is now shown me is my signature. I don't know whether I know or recognize this paper now shown me or not (examine same). I guess I do; I don't know exactly whether I do or not. I suppose I did make the statements therein contained." On redirect examination by the State she testifies as follows relative to this deposition: "At the time I signed the paper recently shown me by Mr. Ward I was living at Mr. Spearman's house; was living with him at the time. Q. Now with reference to the time you signed that did you or not go anywhere? A. No sir, I did not go anywhere. I went to Oklahoma shortly after these depositions were signed by me. I think I went the next day after I signed them; I think I did. It was a short time afterwards." After the State had closed the defendant offered the depositions of the witness to contradict her testimony, and the record shows this: "The witness Stella Spearman being duly sworn, deposes and says as follows:

To the First interrogatory she answered:

Stella Spearman, age 16.

Second interrogatory: Yes. I married J.W. Spearman on July 29, 1907.

Third interrogatory: I was pregnant at the time I married J.W. Spearman. I had been pregnant about four months. So far as I know Mr. Spearman knew nothing of my condition as to being pregnant. He had never had intercourse with me and was not the cause of my being pregnant. I refuse to answer who was the cause of my pregnant condition. I know that I was pregnant when I married Mr. Spearman. I did not tell him that I was pregnant. I admitted to Mr. Spearman this morning of the condition that I was in as to my being pregnant. I had denied to him all the while that I was pregnant until this morning, I told him all about it.

Fourth interrogatory: Mr. Claude Pittman was keeping company with me during the month of March, 1907. We were engaged to be married. We were first engaged the 25th of March, 1907. He didn't come for me as he promised. We were to have been married in July, 1907. He stopped coming to see me in June.

Fifth interrogatory: Mr. Spearman has been kind to me since I married him and provided well for me and bought everything for me that I have needed."

The State subsequently recalled Mrs. Stella Simms, formerly Mrs. Stella Spearman, and had her testify at some length, and, among other things, to confidential communications between appellant and herself during their marital relations, and in reference to the statements made by him to her in regard to what her testimony should be in a divorce proceeding between herself and appellant then pending. Among other things she says, "He told me to deny that he had had intercourse with me before we were married. He told me to deny that he had any knowledge or knew anything about me being pregnant at the time of the marriage. He didn't tell me how to answer the question if they asked me who was the cause of my being pregnant, only just to not tell any one — not name anyone. He told me to answer it that way. He told me that not very long before the time I made those answers. He told me to deny all the time that he was the father of the child that I was pregnant with."

Various objections were urged, and, among others, that the above were confidential communications between husband and wife. The depositions, some of which were introduced in evidence, were taken in the divorce proceedings. The matters about which she testified when recalled by the State were not in the depositions, and she was called on by the State to give her reasons why she had testified and the reasons she testified as she did in the divorce case and there cover some of the confidential communications above mentioned, and, among other things, she also stated that he told her that he would go to the penitentiary if she testified he was the father of her child. I am not undertaking here to state the testimony in detail but the substance of it. I am clearly of the opinion that this evidence was not admissible either as original testimony or as sustaining testimony of other matters about which she had testified. She testified in this particular case subsequent to her divorce, and in the divorce case, and it seems to have occurred to the State, and so held by the trial judge, that she could testify to confidential communications made to her by her husband as her reasons why she testified as she did in the divorce case and the State used that testimony or those reasons and confidential communications made to her to sustain her testimony in this case and assist in making out a case against the defendant on this criminal charge. In the rehearing opinion my brethren somewhat, at least, if not entirely, place their reasoning on the ground that she would be justified in testifying as she did on recall by the State to assist in showing that her child was not a bastard, and that although the communications were confidential, that she could testify as she did to protect the legitimacy of her child and explain her reasons for testifying as she did on that trial. The legitmacy of her child was not an issue in the case, and it is a conceded fact, at least the State so showed and the woman testified that she was pregnant long before the defendant married her. Whether it was defendant's child or the child of some other man to whom she had been engaged would not effect the question of the confidential communications between herself and her husband, at least statements that he made to her, although they might involve a crime, could not be used as evidence against him in this case. The statute expressly prohibits the use of confidential communications by either party to the marital relation during such marital relations or even after its cessation. Another theory of the State was that she had committed perjury in the divorce case, and by this method it was sought to show that fact, and that the perjury committed by her was induced by appellant. None of this was provable in any manner or for any purpose by introducing confidential communications. This was so at common law, and our statute expressly prohibits the use of such testimony. At common law the rule is well settled that neither the husband nor wife can testify to communications or conversations occurring between them during the existence of the marital relation, and neither can testify that the other did or did not mention a certain subject. Beveridge v. Miller, 1 Cor. R., 364; 11 E.C.L., 421; Owen v. State, 78 Ala. 425; 56 Am. Rep., 40; Goelz v. Goelz, 157 Ill. 33; Robbin v. King, 2 Leigh. (Va.), 140. The same rule is laid down in Texas; among the later cases deciding this question was Gross v. State, 61 Tex. Crim. 176; Walker v. State, 141 S.W. Rep., 243. In the Gross case the matter was thoroughly discussed and many cases cited. There is no rule better established than that which forbids conversations or communications between the husband and wife as witnesses or matters or conversations occurring between them during the marital relation. Henderson v. Chaires, 25 Fla. 26; Goodrun v. State, 60 Ga. 509. In the latter case it was held in prosecutions for assault committed upon the person of another man's wife wherein she had testified on behalf of the State to the assault, it was held her husband was not a competent witness to throw discredit on her evidence by proving that she delayed complaint to him when opportunity to explain presented itself or existed; that "her silence is within the reason and spirit of the rule that guards confidence between husband and wife and protects their respective communications from disclosure by either." Many of the states have enacted statutes expressly recognizing and enforcing the above rule. I deem it unnecessary here to collate the cases, but such is the rule in Arkansas, California, Illinois, Kansas, Massachusetts, Minnesota, Nebraska, New Jersey, New York, North Carolina, South Carolina, Tennessee and Virginia as well as Texas, and this by statutory enactment. See Davis v. Com. 99 Va. 838. It was also laid down as the rule prohibiting communications between husband and wife from being received in evidence applies in the case of a deposition given by the wife containing such testimony. 6 Ency. of Evidence, p. 895-6; French v. Wade, 35 Kan. 391. In Fuller v. Fuller, 177 Mass. 184, which was a divorce suit, it was held that the plaintiff husband was improperly permitted to testify to a conversation between himself and his wife in which he asked her to return home, to which she replied that she would not come and live with his family. That the fact that the conversation accompanied and explained the act of the wife in leaving her husband, and her mental attitude in that act, was not sufficient to take the conversation out of the operation of the rule established by the Massachusetts statute. It was also held that confessions by the wife of adultery with another person, which confessions were made to her husband, cannot be shown in an action by her husband against the paramour. Sanborn v. Gale,162 Mass. 412; 26 L.R.A., 864; Higham v. Vanosdol, 101 Ind. 160. Nor in an action of libel, by charging the plaintiff with unchastity, can the defendant show by the plaintiff's husband, conversations between them from which it might be inferred that there existed an unlawful intimacy between her and another man. Warner vs. Press Pub. Co., 132 N.Y. 181; see also Dye v. Davis,65 Ind. 474. Any knowledge acquired by the wife on account of the trust confided to her by her husband, or any fact whatever, should be excluded; whether the husband told it to her out of his mouth or showed it to her in a letter, or pointed it out with his hand, or locked it up and gave her alone access to it by intrusting her with the key. Stanford v. Murphy, 63 Ga. 410. And the word "communication" used in the statute, is to be given a liberal construction. It should not be confined to a mere statement by the husband to the wife, or vice versa, but should be construed to embrace all knowledge upon the part of the one or the other obtained by reason of the marriage relation, and which, but for the confidence growing out of it, would not have been known to the party. See Com. v. Sapp, 90 Ky. 580; 14 S.W. Rep., 834. The bases of this rule excluding communications or conversations between husband and wife during coverture is public policy and is wholly independent of any questions of interest or identity, citing People v. Mullings, 83 Cal. 138; Rivers v. State, 118 Ga. 42; Goelz v. Goelz, 157 Ill. 33. This covers all and every confidential communication from husband to wife or vice versa, and these may not be divulged in any court. Stanford v. Murphy, 63 Ga. 410; see State v. Brittain, 117 N.C. 783. It is the rule both at common law and under the statutes of the various states that this disability of husband and wife continues as to such communications and conservations even after the marital relation has been dissolved by death. The fact of death is said rather to increase than lessen the force of the rule. This has been so decided in the Supreme Court of the United State, in California, Delaware, Georgia, Illinois, Indiana, Kansas, Maine, Michigan, Missouri, Nebraska, New York, Pennsylvania, Tennessee and Texas. Mitchell v. Mitchell, 80 Tex. 101, is here referred to, also Vermont, and Virginia. Without collating the various decisions of these states they will be found collated in note No. 9 on page 897 of 6 vol. Ency. of Evidence, as most of the authorities collated heretofore in this opinion are also to be found in that same work on different pages and in different notes. I make this general reference to the above volume of Ency. of Evidence without putting quotation marks around some of it so that those who care to find the authorities and look this matter up can readily discover these cases and announced rules. It is also true that the dissolution of the marital relation by divorce does not remove the privilege of confidential communications. This is the rule laid down in California, Illinois, Kentucky, Kansas, Massachusetts, Michigan, Missouri, Pennsylvania, Alabama, North Carolina and Texas, and in fact it seems to be the rule practically wherever the English jurisprudence is known. And it has been laid down as well that a statute expressly making either party to a divorce suit a competent witness, does not modify or repeal a statute reenacting the common law rule of exclusion. See41 Ga. 613; 28 Mo. App., 97; 13 Mo. App., 591; 14 Mo. App., 418; 13 Mo. App., 588; 170 Penn. St., 71; 26 Atl. Rep., 198. "There was formerly some question whether or not the privilege extended to communications between husband and wife which in their nature did not seem to be confidential, but the general rule was finally adopted that the privilege extended to all communications between husband and wife, although on subjects not confidential in their nature." Dexter v. Booth, 2 Allen (Mass.), 559.

The rule is undoubted in Texas not only by decision but by the statute itself. That the rule may work a hardship some times in preventing the wife or husband from testifying does not enter into the consideration, because all rules of law or evidence will work hardships at some point at some time or other, but whether it works or not hardships or inconvenience, the rule is in favor of the statutory prevention of disclosure. The untold and unfortunate results that might accrue or occur from permitting the husband and wife to testify with reference to confidential communications would be hard to be enumerated and fearful in effect on society. It has been the policy underlying the very basic principle of our government, which is the marital relation, that these communications shall not be disclosed; that these sacred relations incurred by virtue of the marriage state shall remain inviolable and uncovered. If they are uncovered for one reason, they may be uncovered for all reasons that may be thought convenient or inconvenient. I do not purpose to enter into a discussion of whether or not the illegitimate child of witness in this case was that of her husband or of somebody else. It is a matter about which this question has no concern. Suffice it to say in this respect that if the testimony is to be credited at all in this record, the child was illegitimate from some source, and its legitimacy or illegitimacy cannot be made to bear on the defendant's case in a criminal action by uncovering the confidential communications which occurred between him and his wife. It is bad enough to have illegitimate children, but it is still worse to uncover the sacredness of the home. To uncover these matters in court would constitute husband and wife directly or indirectly witnesses against each other in all matters, even of the acutest criminal nature.

I cannot agree with my brethren, and think this judgment ought to be reversed and the cause remanded.