The original bill of exceptions in this case, signed by the
trial judge and also certified by the clerk of the trial court, was
transmitted to the Supreme Court of the Territory of Utah, and was
filed, together with the record of the case, in that court.
Held, that its identification and authentication were
perfect, and were sufficient to bring the questions raised by the
record within the jurisdiction of this Court.
The wife of a married man is not a competent witness in Utah
against her husband on trial under an indictment for polygamy.
On the 23d of November, 1886, the grand jury of the District
Court for the First Judicial District of Utah Territory found an
indictment for polygamy against the plaintiff in error, charging
him with having married one Kate Smith on the 14th day of August,
1884, when his lawful wife, Sarah Ann Williams, was still living
and undivorced.
A motion was made to set aside and dismiss the indictment
Page 137 U. S. 497
on the ground that it had not been found and presented in the
manner prescribed by law because it had been found without any
other evidence than that of the legal wife. This motion was
overruled.
The accused pleaded not guilty and was tried by a jury on the
6th day of January, 1887. He was convicted, and, on the same day,
sentenced to be imprisoned in the penitentiary of Utah for five
years and to pay a fine of five hundred dollars.
An appeal was taken to the Supreme Court of Utah Territory,
where the judgment of the district court was affirmed. The
defendant sued out this writ of error.
The plaintiff in error made in this Court several assignments of
error. Only the following was considered in the opinion.
"
First: The district court erred in permitting Mrs.
Sarah Bassett, the former legal wife of the plaintiff in error,
against his objection, to testify to a confidential communication
made to her by him while they were husband and wife, and not in the
presence of any other person."
The Attorney General on the part of the government, contended
that there was no competent bill of exceptions. The ground for this
objection is stated in the opinion of the Court.
Page 137 U. S. 501
MR. JUSTICE BREWER delivered the opinion of the Court.
On November 23, 1886, the grand jury of the First Judicial
District Court of Utah found an indictment for polygamy against the
plaintiff in error, charging him with having married one Kate Smith
on the 14th day of August, 1884, when his lawful wife, Sarah Ann
Williams, was still living and undivorced. Upon trial before a jury
a verdict of guilty was returned, and he was sentenced to
imprisonment for a term of five years, and to pay a fine of $500.
Such sentence, on appeal, was affirmed by the supreme court of the
territory, and is now brought to this Court for review.
A preliminary question is presented by the Attorney General. It
is urged that there was no proper bill of exceptions as to the
proceedings in the trial court, and therefore nothing is presented
which this Court can review. But we are reviewing the judgment of
the supreme court of the territory, and the rule in this Court is
not to consider questions other than those of jurisdiction, which
were not presented to the court whose judgment we are asked to
examine.
Clark v.
Fredericks,
Page 137 U. S. 502
105 U. S. 4. Beyond
the fact that the proceedings of the trial court were examined and
considered by the supreme court of the territory and are therefore
presumably reviewable by this Court, is this matter, noticed by
this Court in the case of
Hopt v. Utah, 114 U.
S. 488 -- that a large liberty of review is given by the
statutes of Utah to the supreme court of the territory, even in the
absence of a formal bill of exceptions.
See also Stringfellow
v. Cain, 99 U. S. 610;
O'Reilly v. Campbell, 116 U. S. 418.
But it is unnecessary to rest upon this recognition by the
supreme court of the territory or the presumptions arising
therefrom. The record shows the pleadings, proceedings, and
exceptions to the charge of the trial judge, all certified properly
by T. A. Perkins, the clerk of the trial court. At the close of his
certificate, which is of date January 20, 1887, is this
statement:
"And I further certify that a copy of defendant's bill of
exceptions in said cause is not made part hereof, because said bill
of exceptions is in the possession of defendant's counsel at the
City of Salt Lake, and because I am informed by said counsel that
it has been stipulated by and between themselves and the United
States District Attorney for Utah Territory that the original
thereof in place of such copy should be used in the supreme court
upon this appeal."
The bill of exceptions referred to by him in this statement is
signed by the trial judge, and thus endorsed:
"No. 984. First Dist. Court, Utah.
The United States vs.
William E. Bassett. Polygamy. Bill of exceptions. Filed Jan'y
19th, 1887. T. A. Perkins, Clerk,"
and also by the clerk of the supreme court of the territory as
"Filed Feb'y 2nd, 1887," the date of the filing of the transcript
of the proceedings of the trial court. The import of all this is
that the bill of exceptions signed by the trial judge was filed in
the trial court, and that, for the purposes of economy, time, and
convenience, such original bill, together with the record of the
proceedings, was brought to and filed in the supreme court after
having been filed in the trial court. It needs but this suggestion,
that if a copy is good, the original is equally good. The
identification of such bill of exceptions is perfect, vouched by
the signatures
Page 137 U. S. 503
of the trial judge, the clerk of the district court, and the
clerk of the supreme court. To ignore such authentication would
place this Court in the attitude of resting on a mere technicality
to avoid an inquiry into the substantial rights of a party, as
considered and determined by both the trial court and the supreme
court of the territory. In the absence of a statute or special rule
of law compelling such a practice, we decline to adopt it.
Passing from this question of practice to the merits, the
principal question, and the only one we deem necessary to consider,
is this: the wife of the defendant was called as a witness for the
prosecution, and permitted to testify as to confessions made by him
to her in respect to the crime charged, and her testimony was the
only direct evidence against him. This testimony was admitted under
the first paragraph of section 1156 of the Code of Civil Procedure,
enacted in 1884, section 3878 of the Compiled Laws of Utah 1888,
which reads:
"A husband cannot be examined for or against his wife without
her consent, nor a wife for or against her husband without his
consent, nor can either, during the marriage or afterwards, 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."
And the contention is that "polygamy" is within the language of
that paragraph a crime committed by the husband against the wife.
We think this ruling erroneous. A technical argument against it is
this -- the section is found in the Code of Civil Procedure, and
its provisions should not be held to determine the competency of
witnesses in criminal cases, especially when there is a Code of
Criminal Procedure, which contains sections prescribing the
conditions of competency. Section 421 of the Code of Criminal
Procedure, section 5197 of the Compiled Laws, 1888, is 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
Page 137 U. S. 504
which one or both are parties."
Clearly, under that section, the wife was not a competent
witness. It is true that the Code of Criminal Procedure was enacted
in 1878 and the Code of Civil Procedure in 1884, so that the latter
is the last expression of the legislative will, but a not
unreasonable construction is that the last clause of this paragraph
was inserted simply to prevent the rule stated in the first clause
from being held to apply to the cases stated in the last, leaving
the rule controlling in criminal cases to be determined by the
already enacted section in the Code of Criminal Procedure. This
construction finds support in the fact that the same legislature
which enacted the Code of Civil Procedure passed an act amending
various sections in the Code of Criminal Procedure, among them the
section following section 421, quoted above, and did not in terms
amend such section, Laws of Utah 1884, c. 48, p. 119, and in the
further fact that the same legislature passed an act for criminal
procedure in justices' courts, and in that prescribed the same rule
of competency, and in the same language as is found in section 421,
Laws of Utah, 1884, c. 54, section 100, p. 153. It can hardly be
believed that the legislature would establish one rule of
competency for a trial in a justice's court and a different rule
for a trial of the same offense on an appeal to the district court.
And there are many offenses of which justices' courts have
jurisdiction, which are like polygamy in their social immorality
and their wrong to the wife.
But we do not rest our conclusion on this technical argument. If
there were but a single section in force, and that the one found in
the Code of Civil Procedure, we should hold the testimony of the
wife incompetent. We agree with the Supreme Court of California
when, in speaking of their codes, which in respect to these
sections are identical with those of Utah, it says, in
People
v. Langtree, 64 Cal. 259:
"We think upon a fair construction both mean the same thing,
although the Penal Code is more explicit than the other. On this,
as on nearly every other subject to which the codes relate, they
are simply declaratory of what the law would be if there were no
codes."
See also People v. Mullings, 83 Cal. 138.
Page 137 U. S. 505
It was a well known rule of the common law that neither husband
nor wife was a competent witness in a criminal action against the
other except in cases of personal violence, the one upon the other,
in which the necessities of justice compelled a relaxation of the
rule. We are aware that language similar to this has been presented
to the supreme courts of several states for consideration. Some, as
in Iowa and Nebraska, hold that a new rule is thereby established
and that the wife is a competent witness against her husband in a
criminal prosecution for bigamy or adultery, on the ground that
those are crimes specially against her.
State v. Sloan, 55
Ia. 217;
Lord v. State, 17 Neb. 526, while others, as in
Minnesota and Texas, hold that by these words no departure from the
common law rule is intended.
State v. Armstrong, 4 Minn.
251;
Compton v. State, 13 Tex.App. 274;
Overton v.
State, 43 Tex. 616. This precise question has never been
before this Court, but the common law rule has been noticed and
commended in
Stein v.
Bowman, 13 Pet. 209,
38 U. S. 222,
in which Mr. Justice McLean used this language:
"It is, however, admitted in all the cases that the wife is not
competent, except in cases of violence upon her person, directly to
criminate her husband, or to disclose that which she has learned
from him in their confidential intercourse. . . . This rule is
founded upon the deepest and soundest principles of our nature --
principles which have grown out of those domestic relations that
constitute the basis of civil society and which are essential to
the enjoyment of that confidence which should subsist between those
who are connected by the nearest and dearest relations of life. To
break down or impair the great principles which protect the
sanctities of husband and wife would be to destroy the best solace
of human existence."
We do not doubt the power of the legislature to change this
ancient and well supported rule, but an intention to make such a
change should not lightly be imputed. It cannot be assumed that it
is indifferent to sacred things, or that it means to lower the holy
relations of husband and wife to the material plane of simple
contract. So, before any departure from the rule affirmed through
the ages of the
Page 137 U. S. 506
common law -- a rule having its solid foundation in the best
interests of society -- can be adjudged, the language declaring the
legislative will should be so clear as to prevent doubt as to its
intent and limit. When a code is adopted, the understanding is that
such code is a declaration of established law, rather than an
enactment of new and different rules. This is the idea of a code,
except as to matters of procedure and jurisdiction which often
ignore the past, and require affirmative description.
We conclude therefore that the section quoted from the Code of
Civil Procedure, if applicable to a criminal case, should not be
adjudged as working a departure from the old and established rule
unless its language imperatively demands such construction. Does
it? The clause in the Civil Code is negative, and declares that the
exception of the incompetency of wife or husband as a witness
against the other does not apply to a criminal action or proceeding
for a crime committed by one against the other. Is polygamy such a
crime against the wife? That it is no wrong upon her person is
conceded, and the common law exception to the silence upon the lips
of husband and wife was only broken, as we have noticed, in cases
of assault of one upon the other. That it is humiliation and
outrage to her is evident. If that is the test, what limit is
imposed? Is the wife not humiliated, is not her respect and love
for her husband outraged and betrayed, when he forgets his
integrity as a man, and violates any human or divine enactment? Is
she less sensitive, is she less humiliated, when he commits murder,
or robbery, or forgery, than when he commits polygamy or adultery?
A true wife feels keenly any wrong of her husband, and her loyalty
and reverence are wounded and humiliated by such conduct. But the
question presented by this statute is not how much she feels or
suffers, but whether the crime is one against her. Polygamy and
adultery may be crimes which involve disloyalty to the marital
relation, but they are rather crimes against such relation than
against the wife, and, as the statute speaks of crimes against her,
it is simply an affirmation of the old, familiar, and just common
law rule. We conclude,
Page 137 U. S. 507
therefore, that under this statute, the wife was an incompetent
witness as against her husband.
Other questions in the record need not be considered, as they
will probably not arise on a new trial.
The judgment of the supreme court of the Territory of Utah
is reversed, and the case remanded, with instructions to order a
new trial.