Opinion of the Court
ROBERT E. Quinn, Chief Judge:
A general court-martial convicted the accused of unauthorized absence from December 9, 1957, to January 7, 1958 (Charge I) ; bigamy (Charge II); and nine specifications of forging the signature of his wife, Evelyn B. Wise, to dependency allotment checks (Charge III), in violation, respectively, of Articles 86, 184 and 123, Uniform Code of' Military Justice, 10 USC §§ 886, 934 and 923. The court adjudged a sentence which included a dishonorable discharge and confinement at hard labor for five years. The board of review affirmed the findings of guilty, but mitigated the sentence by reducing the discharge to a bad-conduct discharge and the period of confinement to one year. We granted review to consider whether the accused’s wife was properly allowed to testify against him.
According to the evidence, while stationed in Hawaii the accused met Evelyn at a bar in September 1956. He started to date her. They quarreled and broke up on October 14th. A few days later they “started going with each other again” until November 2d, when once more they quarreled and separated. On November 4th, Evelyn called the accused to say she had “something very important to tell” him. He met her and learned that she was pregnant. The accused agreed to marry her. He re-enlisted in the Marine Corps in order to extend his tour of duty in Hawaii. On November 17th he married Evelyn. She had been previously married and had three children. About ten days after the marriage, Evelyn decided to find out “if she loved Louie more than” the accused; Louie had been her boy friend. Shortly thereafter the accused came home early one evening to discover Evelyn in a negligee and Louie on the couch. He picked up his things and returned to the Base to stay.
In January 1957, the accused received the first allotment check. He took it to Evelyn. Both went to the YMCA and had the check cashed. A second check, dated January 31, was given to Evelyn and cashed by her. Shortly afterwards, the accused went to the Crystal Ballroom to talk to Evelyn. He wanted her “to come back.” Apparently in the course of the conversation, Evelyn became ill. She told the accused she had had an “illegal abortion.” The accused took her home. On March 4th or 5th, he received the third allotment check dated February 28th. He went to the Crystal Ballroom to find Evelyn. On this occasion he learned from her that she didn’t love him and that she had married him only because she wanted to “prove” to Louie that she could marry another man. Evelyn also told the accused the “baby” had not been his, but Louie’s. The argument between them became “hot and heavy.” The allotment checks were part of the subject matter of the argument. The accused testified that Evelyn told him she “didn’t give a damn” about what he did with the checks. In her own deposition testimony Evelyn admitted she told the accused he could do whatever he wanted with the allotment checks; allotment checks or no, she just wasn’t “coming back” to live with him.1
[541]*541About two weeks after their argument in the Crystal Ballroom, Evelyn met the accused in the Circus Room.. She told him her children were sick and that she wanted money for the doctor. She asked for, and was given, forty-five dollars from the proceeds of the February allotment check which the accused had “just cashed.”
After the Circus Room meeting, the accused did not see Evelyn again in Hawaii. In April 1957, he learned she had used the money he had given her to go, with Louie, to Santa Monica, California. In May, the accused was transferred to California. He went to his home in Pennsylvania on a thirty-day leave. On his return, he went to Santa Monica and talked to Evelyn. The nature of their discussion is not disclosed. In January 1958, Evelyn came to the accused and asked if he “wouldn’t come back to her.” He refused. That same month, Evelyn replied to a letter from accused’s counsel. “[A]s far as I am concerned,” she said, “it was all right for my husband to cash my cheeks.” She also said she wanted “to drop all charges.” At that time Evelyn was again receiving allotment checks. Nevertheless, in a deposition taken on April 22, 1958, Evelyn testified that she did not endorse any of the checks set out in the specifications of Charge III and she did not authorize the accused to sign her name. The accused admitted he signed his wife’s name and, in some instances, also endorsed the checks in his own name. The checks which are alleged to have been forged are as follows:
February 28, 1957, $91.30; March 31, 1957, $91.30; April 30, 1957, $91.30; May 31, 1957, $91.30; June 30, 1957, $91.30; July 31, 1957, $91.30; August 31, 1957, $91.30; August 31, 1957, $45.80 (difference between $91.30 and increased amount of. $137.10); September 30, 1957, $137.10.
The general rule is that one spouse may not, over objection, testify against the other in a criminal prosecution. United States v Wooldridge, 10 USCMA 510, 28 CMR 76. There are exceptions to the rule. The early common law recognized as exceptions cases of personal violence by one spouse against the other. Over the years other exceptions were added by statute and court decisions. The present Manual provides as follows:
“. . . This privilege does not exist, however, when the husband or wife is the individual or one of the individuals injured by the offense with which the other spouse is charged, as in a prosecution for an assault upon one spouse by the other, for bigamy, polygamy, unlawful cohabitation, abandonment of wife or children or failure to support them, for using or transporting the wife for ‘white slave’ or other immoral purposes, or for forgery by one spouse of the signature of the other to a writing when the writing would, if genuine, apparently operate to the prejudice of such other.” [Manual for Courts-Martial, United States, 1951, paragraph 148e, page 277.]
In United States v Strand, 6 USCMA 297, 304, 20 CMR 13, we noted that the Manual’s enumeration of offenses in which the general rule does not apply “is illustrative, not exclusive.” As regards bigamy, the Manual statement is firmly grounded in precedent. In 1887 Con[542]*542gress provided that “in any prosecution for bigamy . . . under any statute of the United States” one spouse is a “competent witness” against the other but could not be “compelled to testify . . . without the consent” of the other. Act of March 3, 1887, chapter 397, 24 Stat 635, 28 USC § 633 (1940ed). The statute remained in effect more than half a century. In 1948 it was not included in the revision of Title 28 of the United States Code. A few years earlier, however, Congress had empowered the Supreme Court to promulgate rules of procedure in criminal proceedings. 18 USC § 687. Rule 26 of the Federal Rules of Criminal Procedure, promulgated by the Supreme Court, says that unless otherwise provided by act of Congress or other rule, the competency of a witness is determined by the “principles of the common law as they may be interpreted . . . in the light of reason and experience.” The notes of the Advisory Committee assisting in the preparation of the Rules show that Rule 26 continued the existing statutes governing the competency of witnesses. See 18 USC § 687, Rule 26 Notes.
Free access — add to your briefcase to read the full text and ask questions with AI
Opinion of the Court
ROBERT E. Quinn, Chief Judge:
A general court-martial convicted the accused of unauthorized absence from December 9, 1957, to January 7, 1958 (Charge I) ; bigamy (Charge II); and nine specifications of forging the signature of his wife, Evelyn B. Wise, to dependency allotment checks (Charge III), in violation, respectively, of Articles 86, 184 and 123, Uniform Code of' Military Justice, 10 USC §§ 886, 934 and 923. The court adjudged a sentence which included a dishonorable discharge and confinement at hard labor for five years. The board of review affirmed the findings of guilty, but mitigated the sentence by reducing the discharge to a bad-conduct discharge and the period of confinement to one year. We granted review to consider whether the accused’s wife was properly allowed to testify against him.
According to the evidence, while stationed in Hawaii the accused met Evelyn at a bar in September 1956. He started to date her. They quarreled and broke up on October 14th. A few days later they “started going with each other again” until November 2d, when once more they quarreled and separated. On November 4th, Evelyn called the accused to say she had “something very important to tell” him. He met her and learned that she was pregnant. The accused agreed to marry her. He re-enlisted in the Marine Corps in order to extend his tour of duty in Hawaii. On November 17th he married Evelyn. She had been previously married and had three children. About ten days after the marriage, Evelyn decided to find out “if she loved Louie more than” the accused; Louie had been her boy friend. Shortly thereafter the accused came home early one evening to discover Evelyn in a negligee and Louie on the couch. He picked up his things and returned to the Base to stay.
In January 1957, the accused received the first allotment check. He took it to Evelyn. Both went to the YMCA and had the check cashed. A second check, dated January 31, was given to Evelyn and cashed by her. Shortly afterwards, the accused went to the Crystal Ballroom to talk to Evelyn. He wanted her “to come back.” Apparently in the course of the conversation, Evelyn became ill. She told the accused she had had an “illegal abortion.” The accused took her home. On March 4th or 5th, he received the third allotment check dated February 28th. He went to the Crystal Ballroom to find Evelyn. On this occasion he learned from her that she didn’t love him and that she had married him only because she wanted to “prove” to Louie that she could marry another man. Evelyn also told the accused the “baby” had not been his, but Louie’s. The argument between them became “hot and heavy.” The allotment checks were part of the subject matter of the argument. The accused testified that Evelyn told him she “didn’t give a damn” about what he did with the checks. In her own deposition testimony Evelyn admitted she told the accused he could do whatever he wanted with the allotment checks; allotment checks or no, she just wasn’t “coming back” to live with him.1
[541]*541About two weeks after their argument in the Crystal Ballroom, Evelyn met the accused in the Circus Room.. She told him her children were sick and that she wanted money for the doctor. She asked for, and was given, forty-five dollars from the proceeds of the February allotment check which the accused had “just cashed.”
After the Circus Room meeting, the accused did not see Evelyn again in Hawaii. In April 1957, he learned she had used the money he had given her to go, with Louie, to Santa Monica, California. In May, the accused was transferred to California. He went to his home in Pennsylvania on a thirty-day leave. On his return, he went to Santa Monica and talked to Evelyn. The nature of their discussion is not disclosed. In January 1958, Evelyn came to the accused and asked if he “wouldn’t come back to her.” He refused. That same month, Evelyn replied to a letter from accused’s counsel. “[A]s far as I am concerned,” she said, “it was all right for my husband to cash my cheeks.” She also said she wanted “to drop all charges.” At that time Evelyn was again receiving allotment checks. Nevertheless, in a deposition taken on April 22, 1958, Evelyn testified that she did not endorse any of the checks set out in the specifications of Charge III and she did not authorize the accused to sign her name. The accused admitted he signed his wife’s name and, in some instances, also endorsed the checks in his own name. The checks which are alleged to have been forged are as follows:
February 28, 1957, $91.30; March 31, 1957, $91.30; April 30, 1957, $91.30; May 31, 1957, $91.30; June 30, 1957, $91.30; July 31, 1957, $91.30; August 31, 1957, $91.30; August 31, 1957, $45.80 (difference between $91.30 and increased amount of. $137.10); September 30, 1957, $137.10.
The general rule is that one spouse may not, over objection, testify against the other in a criminal prosecution. United States v Wooldridge, 10 USCMA 510, 28 CMR 76. There are exceptions to the rule. The early common law recognized as exceptions cases of personal violence by one spouse against the other. Over the years other exceptions were added by statute and court decisions. The present Manual provides as follows:
“. . . This privilege does not exist, however, when the husband or wife is the individual or one of the individuals injured by the offense with which the other spouse is charged, as in a prosecution for an assault upon one spouse by the other, for bigamy, polygamy, unlawful cohabitation, abandonment of wife or children or failure to support them, for using or transporting the wife for ‘white slave’ or other immoral purposes, or for forgery by one spouse of the signature of the other to a writing when the writing would, if genuine, apparently operate to the prejudice of such other.” [Manual for Courts-Martial, United States, 1951, paragraph 148e, page 277.]
In United States v Strand, 6 USCMA 297, 304, 20 CMR 13, we noted that the Manual’s enumeration of offenses in which the general rule does not apply “is illustrative, not exclusive.” As regards bigamy, the Manual statement is firmly grounded in precedent. In 1887 Con[542]*542gress provided that “in any prosecution for bigamy . . . under any statute of the United States” one spouse is a “competent witness” against the other but could not be “compelled to testify . . . without the consent” of the other. Act of March 3, 1887, chapter 397, 24 Stat 635, 28 USC § 633 (1940ed). The statute remained in effect more than half a century. In 1948 it was not included in the revision of Title 28 of the United States Code. A few years earlier, however, Congress had empowered the Supreme Court to promulgate rules of procedure in criminal proceedings. 18 USC § 687. Rule 26 of the Federal Rules of Criminal Procedure, promulgated by the Supreme Court, says that unless otherwise provided by act of Congress or other rule, the competency of a witness is determined by the “principles of the common law as they may be interpreted . . . in the light of reason and experience.” The notes of the Advisory Committee assisting in the preparation of the Rules show that Rule 26 continued the existing statutes governing the competency of witnesses. See 18 USC § 687, Rule 26 Notes. It seems highly unlikely that when Congress omitted Section 633 from the 1948 Revision of Title 28, it intended the Federal courts to discard an exception which had prevailed for so long a time. Rather, in our opinion, Section 633 was omitted for the simple reason that a half century of experience under the statute had fixed the exception as a rule of evidence within Rule 26. We hold, therefore, that the accused’s wife was a competent witness and could voluntarily testify against him on the bigamy charge.
A more difficult question is presented by the forgery offenses. In United States v Wooldridge, supra, we reviewed the same issue. We noted that several courts which considered the matter concluded the spouse whose signature was forged was not competent to testify against the other. We did ■ not decide whether a different rule obtains in the military because of the Manual provision, or whether “in the light of reason and experience” such other rule should apply. In that case, as here, the forgery was of a dependency allotment check made out to the wife. We pointed out that a material part of the check represents a deduction from the basic pay of the serviceman-husband. That circumstance and the fact of the accused's status as a husband give him a substantial interest in the check and its proceeds.
In this case, undisputed evidence shows the accused’s wife refused to live with him, and told him he could do whatever he pleased about the allotment. The wife’s own testimony shows she renounced all interest in the February check and its proceeds, and did not expect to receive any more checks. Therefore, signing her name to the checks did not constitute an injury to her. Consequently, as to the forgery specifications, the defense objection to the competency of the wife to testify against the accused was erroneously overruled. The error requires reversal of the findings of guilty of the nine specifications under Charge III.
The findings of guilty of Charge III and its specifications are set aside, and those charges are dismissed. The sentence is set aside. The record of trial is returned to The Judge Advocate General of the Navy for reference to a board of review for reassessment of the sentence on the basis of the remaining findings of guilty.
Judge FeRGUson concurs.