Toth v. State

3 N.W.2d 899, 141 Neb. 448, 1942 Neb. LEXIS 138

• Court: Nebraska Supreme Court
• Decided: May 15, 1942
• Docket: No. 31197
• Status: Published

Opinions

Simmons, C. J.

The defendant in this action was charged with, and tried for, the crime of incest. He was found guilty, the jury recommending leniency. Motion for a new trial was made and overruled. Defendant appeals.

He presents first the sufficiency of the evidence to sustain the conviction. The daughter testified to the act and prior occurrences. Supporting her testimony was that of her mother, wife of the defendant, and of members of the family, who testified to circumstances, acts, conduct, admissions, and statements of the defendant. His evidence, by several witnesses, consisted of a denial of the testimony of the state’s witnesses, an alibi as to the time of the particular act relied upon by the state, and explanations of parts of the state’s evidence and admissions made by the daughter.

The rule is that, in a prosecution for incest, the evidence of the prosecutrix need not necessarily be corroborated by an eyewitness to the particular act, but it is necessary that she should be corroborated as to the material facts and circumstances which tend to support her testimony and to establish or corroborate the truth thereof. Such corroboration may be either by direct testimony or by circumstantial evidence. Bridges v. State, 80 Neb. 91, 113 N. W. 1048. The evidence received by .the court for the consideration of the jury has been reviewed. It is in conflict on material points. Assuming that prejudicial error did not occur in its admission, the evidence is sufficient to sustain the conviction.

. Over proper objection, the wife of the defendant was permitted to testify at length regarding acts, declarations, and admissions of the defendant, and his conduct toward their daughter, covering a period of years down to and including a conversation had with the defendant while he was in jail awaiting trial. She was further allowed to testify regarding conversations had with the daughter and members- of the family with relation to the conduct of the defendant and the alleged offense. The mother and wife was the principal corroborative witness.

It is not our right or duty to pass upon the guilt or innocence of the defendant. Neither may we weigh the moral gravity of the charge made against the defendant. In this case, as in all other criminal proceedings, the state must establish its case by compliance with the rules of criminal evidence and procedure. In this case, as in all others, the defendant’s rights must be safeguarded.

We are presented with the legal question as to whether or not the admission of the testimony of the wife was prejudicial error requiring a reversal of the judgment and the granting of a new trial..

Section 20-1201, Comp. St. Supp. 1941, provides that, “ * * * in all cases, civil and criminal * * * The following persons shall be incompetent to testify * * * Second. Husband and wife, concerning any communication made by one to the other during the marriage, whether called as a witness while that relation subsists or afterward, except as may be otherwise provided by law. * * * ” Section 20-1204, Comp. St. 1929, provides: “Neither husband nor wife can be examined in any case as to any communication made by the one to the other while married, nor shall they, after the marriage relation ceases, be permitted to reveal, in testimony any such communication made while the marriage subsisted except as is now or may be hereafter otherwise provided by law.” Section 20-1203, Comp. St. 1929, applicable here, provides: “The husband can in no case be a witness against the wife, nor the wife against the husband, except in a criminal proceeding for a crime committed by the one against the other * * * .” These sections clearly set up a legislative prohibition closing the lips of the spouse “except in a criminal proceeding for a crime committed by the one against the other.” The statute is clear. It means what it says.

Two questions are to be determined affirmatively before the one spouse may be a competent witness against the other. Is it a criminal proceeding? Is it for a crime committed by the one against the other? It should be remembered that in this state “No act is criminal unless the legislature has in express terms declared it to be so.” Lane v. State, 120 Neb. 802, 232 N. W. 96. See Behrens v. State, 140 Neb. 671, 1 N. W. (2d) 289. Defendant was tried for a violation of section 28-906, Comp. St. 1929, which provides : “If a father shall licentiously cohabit with his own daughter, the father'shall, on conviction be punished by confinement in the penitentiary for a term not less than twenty years.”

That this is a criminal proceeding is clear. Is it one for a crime committed by the husband against the wife? The statute makes the offense consist of the act by the father with his daughter. From an analysis of the statute, it does not appear that the legislature declared the crime to be one against the wife.

The state, however, cites three decisions of this court which it claims authorizes the testimony of the wife against the husband in an incest case. In Lord v. State, 17 Neb. 526, 23 N. W. 507, an attempt was made to charge the defendant with deserting his wife andi living andi cohabiting with another woman in a state of adultery. The wife was permitted, over objection, to testify as to the marriage and the desertion and to identify the other woman. This court held that it was not error. It may here be noted that by amendment in 1905, Laws 1905, eh. 172 (twenty years after the decision in the Lord case), the legislature provided that the wife is a competent witness against the husband in desertion cases. See Comp. St. 1929, secs. 20-1203, 28-458. The case of Lord v. State, supra, was one that had in it the two elements, desertion and adultery. In reaching its conclusion, it should be noted that this court relied upon certain decisions from Iowa and Texas to which reference will later be made.

Owens v. State, 32 Neb. 167, 49 N. W. 226, was an incest case. In that case the wife did not testify. The bill of exceptions shows that the county attorney argued to the jury that the wife was not called to testify and commented on the defendant’s failure to present his wife as a witness. An examination of the briefs reveals that the defendant took the position in this court that it was the duty of the prosecutor to have called the wife as a witness. The attorney general in his brief made no mention of the matter. Under these circumstances this court held that it was the “prosecutor’s privilege to have called” her; that it was gross error to permit the argument to go to the' jury that the defendant should have called her; and without any discussion of authority, this court said: “In Lord v. State, 17 Neb. 526, it was held, and consistently maintained, by reason and precedent, that a wife may be called by the state to testify against her husband on an indictment for adultery. This rule remains; and if for adultery, the more swiftly might she be called on an indictment for incest.”

Hills v. State, 61 Neb. 589, 85 N. W. 836, was a prosecution for bigamy. In that case the first wife signed the complaint before the examining magistrate, and later, over objection, testified as a witness for the state. This court, citing Lord v. State, swpra, and Owens v. State, supra, and the Iowa cases that were cited in Lord v. State, supra, held: “The wife is a competent witness against the husband in a criminal prosecution for bigamy or adultery, inasmuch as these are crimes specially against her and not merely against the relation.” Not called to our attention by the state is Harris v. State, 80 Neb. 195, 114 N. W. 168. That case was a prosecution for statutory rape upon a stepdaughter. The wife signed the complaint before the magistrate but does not appear to have testified. There this court, citing Lord v. State, supra, and Owens v. State, supra, held that the wife may sign the complaint against the husband in such a case.

The state further relies upon State v. Chambers, 87 Ia. 1, 53 N. W. 1090, and State v. Shultz, 177 Ia. 321, 158 N. W. 539, 4 A. L. R. 1071.

In State v. Shultz, supra, it was held that the prohibition against the wife’s testifying against, the husband does not apply when the charge is incest, citing State v. Chambers, supra, and Compton v. State, 13 Tex. App. 271, 44 Am. Rep. 703. The statute set out in State v. Chambers, supra, is similar to our own. There the Iowa court, citing its own decisions relied upon by this court in the early opinion and following them, held that a prosecution for incest was a crime against the wife and that she was a competent witness. It is interesting here to note that the Iowa court in State v. Shultz, supra, cited Compton v. State, supra, as sustaining its position, and in State v. Chambers, supra, cited the same Texas case as holding the wife “was not a competent witness against her husband.” The Texas cases will be discussed later.

State v. Chambers, supra, cited and relied upon the following cases. State v. Hughes, 58 Ia. 165, 11 N. W. 706, was a bigamy case. There the lawful wife, over the objection of the defendant, testified “to prove the marriage between her and the defendant.” This was held not to be error, citing State v. Sloan, 55 Ia. 217, 7 N. W. 516, and State v. Bennett, 31 Ia. 24. State v. Sloan, supra, was a bigamy case. The first wife testified over objection. The court without citation of authority held that, “if the defendant is guilty of bigamy, he committed a crime against his wife,” and that she was a competent witness. State v. Hazen, 39 Ia. 648, was an adultery case, where the wife’s testimony was admitted, and State v. Bennett, supra, was followed. State v. Bennett, supra, was an adultery case. There the question presented was whether or not the husband was a competent witness against the wife. The court considered it as one of “first impression.” The court there pointed out that the Iowa statute provided that “no prosecution for adultery can be commenced but on complaint of the husband or wife,” and that that led “to the inference that the offense is rather a crime against the partner to the marital relation than against society in general,” and that “the only mode of commencing the prosecution is by becoming a prosecuting witness before the grand jury, or by filing an information before a committing magistrate,” and that the magistrate must examine the informant, that “the informant assumes the attitude of a witness,” and that to “deny the right of the husband to testify * * * would also deny his right to commence the prosecution,” and that that “would prove too much.” It therefore appears that the Iowa decisions, upon which the decisions of this court rest, stem back to a decision of that court in an adultery case based upon a particular statute which the court held made the spouse a competent witness.

The Texas cases cited by this court in Lord v. State, supra, are Morrill v. State, 5 Tex. App, 447, and Roland v. State, 9 Tex. App. 277. In the Morrill case the court said, “decisions may be found which hold that adultery of the wife * * * is a crime * * * against the husband,” citing only State v. Bennett, supra. Roland v. State, supra, relied entirely upon the Morrill case. However, Compton v. State, supra, was a charge for incest with a stepdaughter. In that case the Texas court specifically overruled the Morrill and Roland cases. It appears that Texas has repeatedly affirmed the decision in Compton v. State. See Calloway v. State, 92 Tex. Cr. 506, 244 S. W. 549. Our investigation indicates that it has been followed by other courts.

It follows that the decisions of this court upon which the state relies, rest upon adjudications from the Texas courts, which that court has overruled, and upon a decision from Iowa based upon a particular statute not similar to the one involved here. We-need not now determine whether or not our cases should be modified. It is clear that they should not be construed to extend, and that they do not justify an extension of, the rule as urged by the state. This court has saidi: “A judge, in writing an opinion, must be permitted a certain latitude in stating his reasons for the conclusions that are reached. It quite often happens that statements are made and conclusions announced in the body of an opinion that are not necessary for a decision of the questions presented and are not directly applicable thereto. These statements are also sometimes carried in the syllabus of the case, which is prepared by the writer of the opinion. Writers of opinions endeavor to prevent those occurrences. When they do occur, they are not considered to be controlling, although they are often helpful and likewise are often later adopted by the court by subsequent reference thereto. Because of these situations, there have evolved the rules now followed by this court, to wit: As precedents, the controlling features of an opinion are the rules of law necessarily reached and stated in determining the issues presented based upon the facts found in the record. The opinion controls the syllabus, the latter being merely explanatory of the former and having no more force and effect than statements made in the opinion upon which they are based.” Maxwell v. Hamel, 138 Neb. 49, 292 N. W. 38.

Cases on this subject-matter are collected in 4 A. L. R. 1071, and 35 A. L. R. 138.

Our attention has been called to statements in 8 Wigmore,Evidence (3d ed.) sec. 2239. This is an authority that courts and lawyers respect. It is noted that Professor Wig-more refers to what “ought to be plain in law.” See page 258. This text was directly considered by the supreme court of Oklahoma in Cargill v. State, 25 Okla. Cr. 314, 220 Pac. 64, 35 A. L. R. 133, wherein that court said: “The inadequacy of the reasons for the rule and its exceptions, as stated by Wigmore, may be sound, but we are called to look beyond these reasons. We are here called upon, not to determine the wisdom of the law, but to determine what the law is. If the law is unwise, the legislature,can easily modify it. So far as possible, we are bound to follow the law as declared by the highest courts of the land, rather than that of text-writers, however eminent.”

It is also noted that Professor Wigmore in his footnotes, page 259, so far as his text relates to incest, cites the Iowa and Nebraska cases analyzed herein, including Harris v. State, supra, with this statement, “rape under age, on the defendant’s stepdaughter; the wife admitted.” He also recognizes the overruling of the previous Texas cases by Compton v. State, supra.

The supreme court of Washington has held that a wife is not a competent witness against the husband in a prosecution for incest. State v. Beltner, 60 Wash. 397, 111 Pac. 344. Also Oklahoma in Lacey v. State, 27 Okla. Cr. 42, 224 Pac. 994.

The supreme court of New Jersey in State v. Masnik, 123 N. J. Law, 335, 8 Atl. (2d) 701, an incest case, held: “A wife or husband is precluded from testifying against each other in a criminal action except to prove the fact of marriage.” Their statute is different than the ones we have been considering. It specifically provides that the husband or wife is competent, in a criminal action, to testify against the other spouse to prove the fact of marriage; that a married woman may testify against her husband when she is the complainant against him, and that unless otherwise provided one spouse is not competent to give evidence against the other in any criminal proceeding.

The supreme court of South Dakota in State v. Burt, 17 S. Dak. 7, 94 N. W. 409, had this same question before it in an incest case, where the wife was permitted, over objection, to testify for the state. The court there considered our decisions in Lord v. State, supra, and Owens v. State, supra, and the Iowa decisions, and came to the conclusion that this court had held that the wife was a competent witness in incest cases. The statutes are similar. The state here argues that, adultery being a crime against the wife, even more so is incest. It has likewise been suggested that by analogy, adultery and bigamy being held by some courts to be crimes against the wife, so is incest. The fallacy of this reasoning lies in the assumption that adultery is an essential element of incest. These contentions are all answered by the South Dakota court in the following language: “We cannot avoid the conclusion that the legislature intended to exclude the wife’s testimony in this class of cases when its introduction is not consented to by her husband. As heretofore suggested, the general rule relating to the examination of married persons excludes the testimony of each without the consent of the other. The competency of either in the absence of consent is the exception. * * * With reference to this statute the husband’s crimes might be classified thus: (1) Those which are against persons other than his wife; (2) those which are against no particular person; and (3) those which are against his wife. It is only in actions for crimes belonging to the last-mentioned class that the wife can testify for or against her husband without his consent. Had the defendant, in the ease at bar, been a widower when the acts were done for which he is being punished, his crime would have been the same. The existence of the marital relation between the ivitness and the defendant did not, in any legal sense, affect or constitute any element of the crime for which he was convicted. Should we hold that the crime charged in this action was one against the wife, it would logically follow that the rape or murder of defendant’s daughter would have been a crime against her within the meaning of the statute. To hold that a wife may testify for or against her husband, without his consent, in cases of incest, would be, in effect, to establish the rule that either husband or wife may testify for or against the other, without consent, in all actions wherein either is defendant; and such was manifestly not the legislative intent. With the policy of this statutory rule the courts are not concerned. If the law should be changed, the duty of changing it devolves upon the legislature, not upon this court.” (Italics supplied.) State v. Burt, supra. See, also, Bassett v. United States, 137 U. S. 496, 11 S. Ct. 165.

We follow the reasoning of the South Dakota court and other courts cited, and hold that incest is not a crime against the wife within the meaning of the statute, and that she cannot be a witness against the husband. It follows that the admission of the wife’s testimony was prejudicial error requiring a reversal of the case.

The defendant submits that the state’s evidence “tended to show that the alleged act * * * was done forcibly and against the will” of the daughter and that it was evident that the defendant might have been guilty of a violation of section 28-407, Comp. St. 1929, providing that carnal knowledge of a daughter forcibly and against her will constituted rape, and that the jury should have been instructed that, if they believed that the act was done forcibly and against the daughter’s will, they should acquit the defendant of incest. We see no merit in this contention. The state’s burden was to prove the crime charged. The fact that evidence, if believed, might warrant conviction for a different offense does not alter the situation. See Welch v. State, 58 Ga. App. 447, 198 S. E. 810.

The defendant further complains about the admission of the evidence of several witnesses on different matters. In the main this evidence was admitted without objection and accordingly error cannot be predicated upon it.

For the error in admission of the testimony of the wife, the judgment of the district court is reversed, the verdict set aside and the cause remanded for furthér proceedings.

Reversed.