Summary
In Clark v. State, 159 Tenn. 507, 19 S.W.2d 228 (1929), the defendant's wife gave statements to certain officers in regard to the defendant's actions. Based upon this information, the officers made further investigation and obtained evidence of third parties on the basis of which the defendant husband was convicted. It was contended by defendant that, since the wife disclosed information in violation of the marital privilege, information and testimony resulting from her disclosure were incompetent. The Supreme Court of Tennessee rejected this contention.
Summary of this case from State v. NewmanOpinion
Opinion filed July 20, 1929.
1. CRIMINAL LAW. Evidence. Husband and wife. Competency of evidence of third party obtained by extrajudicial and voluntary disclosure by the wife.
Convicting testimony of officers, secured by extrajudicial and voluntary disclosures of the wife of defendant, held competent. (Post, p. 508.)
Citing: 28 R.C.L., p. 480; Welker v. New York Central R.R., 275 Pa. 82, 86; Com. v. Johnson, 213 Pa. 432.
Citing and Differentiating: McCormick v. State, 135 Tenn. (8 Thomp.), 218.
2. CRIMINAL LAW. Trial judge. Expression of opinion in presence of jury.
Where a trial judge states to defense counsel in presence of jury: "I believe I'll overrule your exception. If I sustain it, the defendant goes free on a technicality, and the liquor was there. I don't think he should be turned loose, and the State insists so," held that the State's case being uncontroverted, no proof being introduced by plaintiff in error to meet the State's case, and no exception taken to the language of the trial judge at the time, the jury could not fail to convict and there is no reversible error. (Post, p. 509.)
Citing: Acts 1911, ch. 32.
3. CRIMINAL LAW. Bill of exceptions. Charge of court.
The charge of the court must be preserved by bill of exceptions or it will be presumed that all questions of fact were submitted to the jury under proper instructions. (Post, p. 510.)
Citing: Temple v. State, 127 Tenn. (19 Cates), 429.
[*] Corpus Juris-Cyc References: Criminal Law, 17CJ, section 3570, p. 223, n. 44; section 3637, p. 295, n. 63; Witnesses, 40 Cyc, p. 2213, n. 34.
FROM GIBSON.Appeal from the Circuit Court of Gibson County. — HON.W.W. BOND, Judge.
TAYLOR, ADAMS FREEMAN, for plaintiff in error.
W.F. BARRY, JR., Assistant Attorney-General, for the State.
By the petition to rehear the plaintiff in error again urges his fourth and sixth assignments of error, not expressly responded to in the written opinion heretofore filed.
The fourth assignment complains that the convicting evidence was obtained by the testifying officers through disclosures made to them by the wife of the plaintiff in error; and that, since her information came to her through the marital relation, evidence resulting from her disclosures was incompetent.
Conceding that the wife would have been an incompetent witness against her husband as to these matters, McCormick v. State, 135 Tenn. 218, we are cited to no authority extending the privilege so as to render incompetent the testimony of strangers to the marital union because the facts related in their testimony were discovered by them as the result of extrajudicial and voluntary disclosures of the wife. In Ruling Case Law, vol. 28, p. 480, it is said: "Apparently the rule does not exclude evidence obtained indirectly from one spouse if it is admissible under other rules of evidence." And in Welker v. New York Central R.R., 275 Pa. 82, 86, 118 Atl., 615, the Supreme Court of Pennsylvania said:
"Under the second assignment, plaintiff contends error was committed in receiving evidence of facts learned through declarations or acts of plaintiff's wife, on the ground that she would not have been a competent witness against him, and, consequently, statements made by her were incompetent. While the wife would not have been a competent witness against her husband, there is no rule of law which prevents a third person from instituting criminal proceedings based on facts learned through information given by the wife of the accused. The admission of such facts in evidence is not permitting the wife to testify against her husband. Com. v. Johnson, 213 Pa. 432."
The sixth assignment of error complains that the trial judge committed error in expressing his opinion of the guilt of the plaintiff in error in the presence of the jury. In a colloquy with attorneys for plaintiff in error with regard to the competency of the evidence offered by the State, the judge said: "I believe I'll overrule your exception. If I sustain it, the defendant goes free on a technicality, and the liquor was there. I don't think he should be turned loose, and the state insists so."
No exception was taken to the language of the trial judge at the time, but an exception was preserved only to the ruling admitting the evidence objected to. And in view of the fact that no evidence was offered by the plaintiff in error to meet the case made by the State against him, we do not think a new trial should be awarded. The evidence was uncontroverted that the whisky was on the premises of the plaintiff in error, and that he admitted an interest in it, though charging his wife with a joint responsibility. The jury could not have failed to convict, and the remark of the trial judge cannot be said to have affected the result. Acts 1911, chapter 32, forbids a reversal under such circumstances. The charge was not preserved by bill of exceptions, and it must be presumed that all questions of fact were submitted to the jury under proper instructions. Temple v. State, 127 Tenn. 429.
The petition to rehear is denied.