Summary
holding that arson of person's dwelling is personal wrong or injury to that person
Summary of this case from State v. ZaisOpinion
Docket No. 81188.
Decided June 1, 1988.
On application by the people for leave to appeal, the Supreme Court, in lieu of granting leave, reversed the judgments of the Court of Appeals and the trial court and remanded the case to the trial court for further proceedings.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, John D. O'Hair, Prosecuting Attorney, and Timothy A. Baughman, Assistant Prosecuting Attorney, for the people. Thomas E. Quarterman, for the defendant.
The spousal privilege provided in MCL 600.2162; MSA 27A.2162 contains an exception for cases in which "the cause of action grows out of a personal wrong or injury done by one [spouse] to the other. . . ." We hold today that an arson of a dwelling, under the circumstances of this case, is such a "personal wrong or injury" and that the victim may therefore testify in the prosecution of her spouse for that arson.
I
The prosecution has alleged that the defendant set fire to his wife's apartment on November 2, 1985. Accordingly, he was charged with burning a dwelling house. MCL 750.72; MSA 28.267.
Any person who wilfully or maliciously burns any dwelling house, either occupied or unoccupied, or the contents thereof, whether owned by himself or another, or any building within the curtilage of such dwelling house, or the contents thereof, shall be guilty of a felony, punishable by imprisonment in the state prison not more than 20 years. [MCL 750.72; MSA 28.267.]
At the preliminary examination, the defendant was bound over as charged. The two witnesses at the preliminary examination were the defendant's wife, who was the victim of the arson, and a lieutenant with the Arson Section of the Detroit Fire Department. The victim testified that the defendant had issued various threats against her, and she described the circumstances of the fire in a manner that established probable cause that the defendant had started the fire. The lieutenant's testimony helped establish that the fire had been started intentionally.
At the preliminary examination, the defendant's wife described the defendant as her ex-boyfriend. She said nothing about a marriage, and said that they had lived together "[a]gainst my will . . . [w]henever he kicked the door in and came in." Since there was no evidence of marriage, there was no discussion of the spousal privilege.
In the trial court, the defendant moved to quash the information. He relied upon the spousal privilege and upon documentary proof (a marriage license and a marriage certificate) that the defendant and the victim had been married on April 25, 1985. After two hearings, the trial court granted the motion. The trial court then entered an order dismissing the prosecution.
MRE 501 provides that the "[p]rivilege is governed by the common law, except as modified by statute or court rule." The spousal privilege is provided by the statutory provision quoted below, and applies in criminal cases, as well as civil cases. People v Bowen, 165 Mich. 231, 237; 130 N.W. 706 (1911). As explained in People v Love, 425 Mich. 691, 696, n 5; 391 N.W.2d 738 (1986) (opinion of CAVANAGH, J.), the spousal privilege must be distinguished from the marital communication privilege. It should also be observed that the spousal privilege has been subjected to scholarly criticism. Love, 710 (opinion of BOYLE, J.). The statute provides:
A husband shall not be examined as a witness for or against his wife without her consent; nor a wife for or against her husband without his consent, except in suits for divorce and in cases of prosecution for bigamy, in cases of prosecution for a crime committed against the children of either or both, and where the cause of action grows out of a personal wrong or injury done by one to the other, or grows out of the refusal or neglect to furnish the wife or children with suitable support, and except in cases of desertion or abandonment, and cases arising under [MCL 551.6; MSA 25.6], relating to marriage, and cases where the husband or wife shall be a party to the record in a suit, action, or proceeding, where the title to the separate property of the husband or wife so called or offered as a witness, or where the title to property derived from, through or under the husband or wife so called or offered as a witness, shall be the subject matter in controversy or litigation in such suit, action or proceeding, in opposition to the claim or interest of the other of said married persons, who is a party to the record in such suit, action or proceeding; and in all such cases, such husband or wife who makes such claim of title, or under or from whom such title is derived, shall be as competent to testify in relation to said separate property and the title thereto without the consent of said husband or wife, who is a party to the record in such suit, action or proceeding, as though such marriage relation did not exist; nor shall either, during the marriage or afterwards, without the consent of both, be examined as to any communication made by one to the other during the marriage, but in any action or proceeding instituted by the husband or wife, in consequence of adultery, the husband and wife shall not be competent to testify. [MCL 600.2162; MSA 27A.2162. Emphasis supplied.]
At the hearings, the parties discussed the scope and proper application of the spousal privilege. They also discussed two other aspects of this case that, in light of our disposition today, we find unnecessary to resolve. The first is the exact marital status of the parties. Besides the fact that the victim did not admit the marriage, there was some indication that she had been previously married but not divorced.
Another aspect of this case that was discussed at the hearings, and that we need not resolve, is the question whether the spousal privilege was waived by the defendant's failure to raise it at the preliminary examination. The trial court accepted the defendant's account that he had told his attorney at the preliminary examination that he was married to the victim (accounting for counsel's questions to the victim about her relationship with the defendant):
I think what [defense counsel] explained to you and I — I don't know that he did so on the record or not — was that the defendant had said something to him about, "We were married." That's why [defense counsel] got up there and asked. She said, "No. We were ex," something or other, boyfriend. . . . And I'm not going to put the burden on [defense counsel] at this point. He tried to figure out from the complainant whether or not he's got himself a privilege situation. She said no. He's got a client who's whispering in his ear, "Yes we are." And, you know, the better forum [sic: form?] might have been to jump up and invoke privilege, but I suspect the judge would have asked, "Miss, are you married?" "No." Keep on going. I would have done that. There certainly was not time to be producing any marriage certificate in this world [sic: whirl?], as [defense counsel] was able to do later.
For present purposes, we need not review the trial court's determination that the questions about the relationship served to preserve the issue.
Another question we need not decide today is whether the spouse's preliminary examination testimony could have been introduced at trial under MRE 804(a)(1), (b)(1). Cf. People v Love, n 3 supra, 708 (opinion of CAVANAGH, J.). That issue would, of course, depend in part on whether the issue of privilege was properly raised at the preliminary examination.
The prosecutor appealed in the Court of Appeals, which affirmed. People v Butler, 160 Mich. App. 721; 408 N.W.2d 532 (1987). Noting this Court's decisions in People v Love, 425 Mich. 691; 391 N.W.2d 738 (1986), and People v Quanstrom, 93 Mich. 254; 53 N.W. 165 (1892), the Court of Appeals, supra, 726, concluded that the victim "could testify against defendant only if the cause of action arises from a wrong which is purely personal in character, in no sense embracing a public wrong." (Emphasis in the original.) The Court of Appeals explained:
The wording of the statute clearly makes arson of a dwelling house a felony, regardless of whether there are any persons in the house and regardless of whether a defendant burns his own property. It is plain that the statute means to prevent not the injury of others nor the destruction of the property of others, but the public wrong of burning any dwelling house, any time, anywhere for any reason. This is not a cause of action "designed to protect or secure some individual right," nor to prevent "personal violence or corporeal injury" to any person.
It is true that one view of the testimony would indicate that defendant committed a personal assault on King, a crime certainly involving "personal violence or corporeal injury to her." It might also be argued that defendant's alleged actions amounted to the malicious destruction of King's personal property, a crime which, if not personally violent, at least is more personal than simple arson. However, defendant was charged neither with personal assault nor with malicious destruction of property. The cause of action was arson of a dwelling house, which is a public wrong.
Under the terms of the statute, therefore, as interpreted by both Love and Quanstrom, the exception does not apply in this case, and the privilege stands. [Emphasis in original. Butler, 160 Mich. App. 727.]
The prosecutor has now applied to this Court, seeking leave to appeal.
II
The issue before us today is simply stated. Is the arson of a person's dwelling a "personal wrong or injury" to that person? We think that an arson of a person's dwelling clearly is a "personal wrong or injury" to that person, and we reject a contrary interpretation as illogical and unreasonable.
Quanstrom was a bigamy case, and it is therefore unnecessary to overrule Quanstrom. We see no reason, though, to interpret the "personal wrong or injury" exception in the narrow fashion stated by Quanstrom:
We need not discuss Love at length. There the defendant was convicted of murdering a male friend of his estranged spouse, and of kidnapping his spouse after the murder. In the present case, the Court of Appeals has relied upon Love as evidence of the continued vitality of the Quanstrom analysis. This Court did not achieve a majority opinion in Love, nor did a majority state its adherence to the analysis offered in Quanstrom.
If not a crime against her, [bigamy] certainly is not a wrong which is personal to her. Criminal statutes are not grounded in personal grievances, but in public injuries, and a prosecution for bigamy is not a cause of action growing out of a personal wrong or injury.
* * *
A personal wrong or injury is an invasion of a personal right; it pertains to the person, the individual. A cause of action growing out of a personal wrong is one designed to protect or secure some individual right. The right, as well as the wrong, must pertain to the person. It must be one that is purely personal in its character, and in no sense can the exception here be said to embrace public wrongs, which are personal only in the sense that they wound the feelings or annoy or humiliate, but inflict no injury upon the person. [ Quanstrom, 93 Mich. 257, 260.]
Setting fire to a person's dwelling does more than "wound the feelings or annoy or humiliate." It places the person in great danger, and it threatens or destroys personal property. Though the record of the preliminary examination reveals that the defendant likely thought the victim and her children were away from the apartment at the time he set the fire, he could not have known that with certainty, nor could he have known that they would not return.
The Court of Appeals observes that the statutory violation of which the defendant was charged — burning a dwelling house — imposes liability even if the dwelling house is unoccupied, and even if the dwelling house is owned by the person who sets the fire. We need not today decide whether the spousal privilege would apply in such situations. Before us today is a case in which the defendant is said to have started a fire in the apartment where his spouse and her children lived. Other than a physical beating directly inflicted upon a victim, it is difficult to imagine anything that would more clearly be a "personal wrong or injury."
In People v Sebring, 66 Mich. 705, 706-707; 33 N.W. 808 (1887), this Court stated:
It would be a strange rule of law, indeed, either common or statute, which would not allow a wife, when assaulted and beaten until her life is endangered by a cruel and malicious husband, to resort to the courts and make her complaint, and secure his arrest. This is not a case which can find support even under that barbarous rule which has been supposed by some ancient authorities to have had an existence among the early customs recognized by the common law, and which permitted the husband to punish his wife under the pretense of needed chastisement. Nor was anything of the kind pleaded as justification in this case. The offense charged is a crime, — one endangering the life of the wife.
There is no question but that at common law the general rule is that neither husband nor wife are competent witnesses against each other in cases, civil or criminal, where either is directly interested in the result of the proceedings. There have, however, always existed at common law exceptions to this rule. One of these exceptions is where the husband commits an assault and battery upon his wife. Then she is a competent witness in a criminal prosecution against him, or in a case of maliciously shooting at her. Lady Lawley's Case, Bull NP 287 [1817]; Rex v Azir, 1 Strange 633 [1792]: Soule's Case, 5 Greenl 407 [1828]; State v Davis, 3 Brev 3 [1811]; Lord Audley's Case, 3 How St Tr 402, 413, Hutton, 115, 116 [1631]; Parsons v People, 21 Mich. 509 [1870].
If the wife could not complain of or be a witness against her husband in these cases, she might not unfrequently be subjected to the most atrocious and brutal conduct from her husband without remedy. Not only the ends of justice, but public policy alike, require that she should be at liberty to complain and prosecute as if she were a feme sole in criminal cases. The law will not allow the marriage relation to be so used as to protect the criminal, or shield him from the just penalty for his crime.
Act No. 211, Laws of 1885, provides that —
"A husband shall not be examined as a witness for or against his wife without her consent, nor a wife for or against her husband without his consent, except in cases where the cause of action grows out of a personal wrong or injury done by one to the other."
Thus it will be seen that it is the policy of the law to extend the right of the wife to bear testimony against the husband in cases of violation of her personal rights, rather than to restrict it.
We find the principles stated in Sebring to be more persuasive and more germane to the present situation than the statements that this Court made in the Quanstrom bigamy case. Accordingly, in lieu of granting leave to appeal, we reverse the judgments of the Court of Appeals and the trial court. We remand this case to the Recorder's Court for the City of Detroit for further proceedings that are consistent with this opinion. MCR 7.302(F)(1).
RILEY, C.J., and BRICKLEY, CAVANAGH, BOYLE, and GRIFFIN, JJ., concurred.
We would grant leave to appeal.
Peremptory reversal should be reserved for those cases in which the law is settled and no factual assessment is required. The Court of Appeals did not, as set forth in the opinion of the Court, regard the law as settled. Because the law is not settled, peremptory disposition is not appropriate.
See Schweiker v Hansen, 450 U.S. 785, 791; 101 S Ct 1468; 67 L Ed 2d 685 (1981) (Marshall, J., dissenting). ("A summary reversal is a rare disposition, usually reserved by this Court for situations in which the law is settled and stable, the facts are not in dispute, and the decision below is clearly in error."); Leis v Flynt, 439 U.S. 438, 457-458; 99 S Ct 698; 58 L Ed 2d 717 (1979) (Stevens, J., dissenting). ("Summary reversal `should be reserved for palpably clear cases of . . . error.' Eaton v Tulsa, 415 U.S. 697, 707 [ 94 S Ct 1228; 39 L Ed 2d 693 (1974)] [Rehnquist, J., dissenting].")
See also Roek v Chippewa Valley Bd of Ed, 430 Mich. 314; 422 N.W.2d 680 (1988).
ARCHER, J., concurred with LEVIN, J.