French v. Ware

ROSS, Ch. J.

These cases present for consideration how far a former wife, after having obtained a divorce, can be allowed to testify against her former husband, in regard to matters occurring during their married life. They were heard together, and may be considered together upon this point. This State has no statute upon this subject. The right rests upon the common law. The decisions in other States made upon the statutes of such States furnish little aid. This right, after the disqualification of interest was removed, is governed by public policy, as held by the common law. That policy applied alike to a widow and divorced wife. The cases, so far as I have been able to examine them, make no distinction between the competency of the widow and of the divorced wife to testify to transactions occurring during the married life. No substantial reason has been suggested or occurs for making any such distinction. The relation of husband and wife is at an end in both cases. Public policy has to do in withholding only such matters as would be likely to invade and disturb the confidence and domestic harmony of the marital relation. It is said by Redfield, Ch. J., in Smith v. Potter, 27 Vt. 304 (65 Am. Dec. 199) : “It has long been settled that the widow may testify to matters of her own knowledge, and indeed to all matters affecting her husband’s interest, unless it involve the disclosure of matters of confidence between the husband and wife, or to transactions affecting the character of the husband.” In substance the same doctrine is held in Edgell v. Bennett & Lowell, 7 Vt. 534 ; Williams v. Baldwin, 7 Vt. 503 ; R. and B. R. R. Co. v. Lincoln's Est. 29 Vt. 206; Carpenter v. Moore, 43 Vt. 394 ; Mathewson v. Sargeant’s Est., 36 Vt. 142; Wheeler v. Wheeler, 47 Vt. 637; Stowe v. Bishop, 58 Vt. 498. In none of these cases has there been any attempt to define “ matters of confidence.” It may be difficult to frame a definition which will be applicable to all the varying circumstances of the married life. Doubtless some latitude must be given to the trial court, in determining whether the offered testimony, under the existing circumstances of the case, involves the disclosure of matters of confidence. In New Hampshire, by statute, the husband and wife are made competent witnesses for or against each other on all matters except such as would be a violation of marital confidence. In Clements v. Marston, 52 N..H. 38, Judge Sargent says : “ And this violation must be something confided by one to the other, simply and specially as husband or wife, and not what would be communicated to any other person under the same circumstances.” In Parkhurst v. Berdell, 110 N. Y. 386, (6 Am. St. R. 384), it is said: “The section of the code referred to forbids not all communications between husband and wife, but only confidential communications. What are confidential communications? * * * They are such communications as are expressly made confidential, or such as are of a confidential nature, or induced by the marital relation. Ordinary conversations relating to matters of business, which there is no reason to suppose he would have been unwilling to hold in the presence of any person, are not confidential.” In these decisions we have carefully guarded statements, both positive and negative, of what are, and what are not, confidential communications. Their nature is so dependent upon the existing circumstances of each case that it would be difficult to enlarge or limit these statements.

There has been less attempt to define “ transactions affecting the character of the husband.” In Edgell v. Bennett & Lovell, supra, the widow was held competent to testify that the conveyance made by the husband was fraudulent. In 2 Starkie on Ev. 709, it is said : “ Where neither of them is either a party to the suit or interested in the general result, the husband or wife is, it seems, competent to prove any fact, provided the evidence does not directly criminate the other.” In State v. Phelfs, 2 Tyler 374, it was held that a divorced wife was not competent to testify in support of a prosecution against her husband charging him with being found in bed with another woman while the marriage relation was subsisting. Presumably her offered testimony was directly to the crime. But in Chamberlain v. People, 23 N. Y. 85, (80 Am. Dec. 255), the husband procured a divorce for the adultery of his wife. He was then prosecuted for having committed perjury in swearing in the divorce suit that he had never had sexual intercourse with her, although she had had a child born during the marriage, and she was allowed to testify in the prosecution that she had never had sexual intercourse with any person other than him. The notes to this case show that it has been quite generally followed. The decision is placed upon the ground that the fact to which she testified did not betray marital confidence. It was not, as in State v. Phelps, direct evidence of the crime charged, but very potent indirect evidence.

Babcock v. Booth, 2 Hill 181 (38 Am. Dec. 578), was an action by an administrator to recover property claimed to have been transferred by the husband to hinder and delay his creditors, and it was held that his widow could testify to any facts which she did not learn from her husband in trust and confidence. See also Dickerman v. Graves, 6 Cush. 308 (53 Am. Dec. 1) and note. In a note to State v. Boyd, 2 Hill S. C. 298, (27 Am. Dec. 376), this statement is made. il Where neither husband nor wife is a party interested, they will be allowed to give evidence, though their testimony clashes ; provided the evidence of neither charges the other with an indictable offence; Commonwealth v. Patterson, 8 Phila. 609 ; and indeed one of the married persons will be allowed to give evidence the only tendency whereof is to discredit the other; Ware v. State, 55 N. J. 553; Cornelius v. State, 12. Ark. 782; but this is sometimes held differently; Roach v. State, 41 Tex. 261.” When the marriage is dissolved by death or divorce, no reason exists why the survivor should not be competent to testify as fully as in a suit between third parties, although the testimony might bear against the other party to the dissolved marriage. From these decisions it is fairly deducible that a widow or divorced wife is competent to testify to any facts or acts occurring during the married life which did not come to her knowledge in confidence growing out of the marital relation, although they may tend to show the husband had committed a fraud or to discredit him as a witness or indirectly to show that he has been guilty of a crime; but that she is incompetent to testify to any facts or transactions which directly show the husband has been guilty of a crime, such as that she saw him in the act of committing the crime. The law assumes that no husband will commit a crime in the presence of his wife, except in the confidence induced by the marital relation. Hence from public policy the widow or divorced wife is incompetent to testify to such acts unless committed against her person. Public policy does not protect him when the crime is against the person of the wife. Crimes are usually committed in secret. The wife might have no other proof than her own of the husband’s crime against her, and her liberty and life would be at his mercy if she could not testify.

I. In the first of these cases the divorced wife of the plaintiff was called by the defendants and testified “ except as to complaints made by the plaintiff of his bodily ill health, and his inability to labor previous to July 12th by reason of a lame side, heart difficulty and trouble with his bladder and kidneys.” The complaints might have been made by the plaintiff relying upon the confidence induced by the marital relation. We must presume they were and that the trial court so found, rather than to presume the contrary and thereby raise error in the ruling of that court. But his inability to labor previous to July 12th was a fact to be observed, whether it came from a lame side, heart difficulty or the other causes specified. The divorced wife was competent to testify to any such fact which she observed which is not the commission of a crime. It is contended by the plaintiff that this clause, commencing with “ and his inability to labor” etc., is connected so that it means and complains of his inability to labor, etc. The sentence is capable of this construction. When a sentence of exceptions reasonably may bear two constructions this court is bound to adopt that one which wrill uphold the ruling of the trial court. On this principle we find no error in this ruling.

II. In the second of these cases this witness was allowed to testify against the exception of the plaintiff to facts observed by her during the marriage relation, which tended to contradict the testimony of the plaintiff in regard to the same facts and so tended to discredit the plaintiff as a witness. This was permissible, as we have shown from the authorities cited, none of the facts testified to being direct evidence of the commission of a crime by her then husband.

III. In the first case it was material to determine whether the plaintiff or defendant, John H. Ware, on the occasion of the disturbance committed the first assault. The plaintiff’s testimony was that Ware first assaulted him as they met in the highway. The testimony of the defendants was that Ware, knowing of the .plaintiff’s threats to kill his whole family, hearing a disturbance at his house, and cries of murder, and seeing the plaintiff passing rapidly into the highway and towards his own house, came into the highway a short distance in front of the plaintiff and commanded him to halt and tell him what he had been doing at the house ; and that the plaintiff thereupon drew a revolver and, pointing it at Ware, advanced in an angry, excited manner toward him, saying “ get out of my way, or I will shoot you, too.” On this statement of the defendant’s testimony, John H. Ware did not then make an assault upon the plaintiff, but the plaintiff did rrpon him, and his declaration implied that he had already shot someone at Ware’s house. If this testimony was found true Ware did not attempt to use, nor make an}'' show of using any force to halt the plaintiff. Words never amount to an assault. They frequently characterize accompanying acts. The defendants’ requests, one and two, were addressed to the facts as claimed by their testimony. The first requested the court to charge, if the claimed facts were found established, “ the defendant was justified in intercepting the plaintiff for the purpose of ascertaining the cause of the disturbance”; and the second, that if the plaintiff, when John H. Ware was attempting so to intercept him, drew a revolver and pointing it at him threatened to shoot him, the plaintiff made the first assault upon Ware, and Ware would be justified in repelling the assault, even to the extent of disarming him. This is the substance of the two requests. The only doubtful words in them are “ intercept” and “ intercepting.” Intercept frequently means no more than to come or place one’s self between a person and the place towards which he is going to make an inquiry or answer a question. When applied to the facts, as shown by the defendant’s testimony, this is the natural meaning rather than that of seizing such person when on his way. But the/ third request makes clear that only this kind of interception was intended as it says, “ on being intercepted by defendant Ware, in the manner indicated by the defendant’s testimony.” Counsel have the right to assume that the court will read all the requests whether it complies with them or not. If in several he uses a word which has several meanings and defines it in one, he is presumed to use it with the same meaning, when applied to the same state of facts in his other requests. But taken in the connection in which it is used, without its definition in the third request, we think these words mean no more than that Ware stepped in front of the plaintiff and between him and the place where he was apparently going and commanded him to halt and tell him what he had been doing at his house. This he had a right to do. On hearing the outcry of murder and seeing him hastening away, Ware was under a moral duty to learn what the plaintiff had been doing at his house, without regard to whether he had the right to arrest the plaintiff without a warrant. On his evidence he did not then and there attempt to arrest him, or to use any force against him. A party has the right to frame his requests to charge with reference to the facts as claimed by his evidence, and, if containing correct statements of law, have them complied with. If the jury found the facts in accordance with the defendant’s evidence, these requests contained correct statements of the law, applicable to the then position of the' parties. They do not attempt to cover whether the defendants, after the plaintiff had retreated from his assault on John H. Ware and was attempting to flee across the fields, had the right to pursue him and treat him as they did. Yet, as bearing upon the damages-, especially the exemplary damages, it was important to have the jury correctly determine whether defendant John H. Ware or the plaintiff committed the first assault in the highway. The only compliance with these requests was a correct charge of what constituted an assault and battery, and of the right of a person assaulted to defend himself and have others help him. ■ The last was a part compliance with the second request. But the important question, which party was the aggressor there in the highway, it touched upon only in a general way and left the jury to decide whether on the facts as claimed by the defendants,, the stepping of John H. Ware into the highway in front of the plaintiff and addressing the inquiry to him was not an assault. In an admitted state of facts it is for the court to declare the law rather than the jury. We do not think the charge given was a full and fair compliance with these requests, and that the defendants were entitled to have these requests complied with. If the jury found the facts of what occurred in the highway established, as the defendant’s evidence tended to establish them, the defendants had the right to have the court tell the jury that John H. Ware did not then commit any assault but that the plaintiff did. The third request assumes the existence of facts of which the exceptions disclose no evidence, and the court correctly declined to comply with it. Neither was there any sufficient evidence to support defendants’ fourth plea. The court was not called upon to charge with reference to it. The charge is to be adapted to the case made by the evidence, and not to a case only partly supported by evidence.

In the first case judgment is reversed and the caicse remanded, and in the other case judgment is affirmed.

Thompson fi., dissents.