UNITED STATES V. JONES.
There has been no specific exception taken to that conclusion of the master. The intervenors do say that they except to the finding of the master that they rafted logs during the spring of the year 1885, and they further say that they except to his finding that after July they did not raft any logs because the stream was too shallow for that purpose. These are the only two exceptions which thA intervenors have taken on that branch of the case. On looking into the testimony upon those points I find· that there is sufficient testimony in the report to sustain the master's finding. . There is some testimony to the contrary, but the evidence is so conflicting that I will not undertake to overrule the master's finding on those points. I furthermore think that the intervenors should have taken specific exception to the conclusion of law involved in the master's finding of fact to the effect that the piles were properly removed. They have not done so. The result is that the exceptions to the master's report on the intervenors' claim will be overruled, and the report confirmed.
UNITED STATES V.
(Distriot Court, D. South Oarolina. October, 1887.)
WITNESS-COMPETENCY OF WI1I'E.
In the courts of the United States a wife is not a. competent witness for OJ' against her husband in a criminal case; and this is on the score of public policy.1
NEW TRIAL-ExCLUSION OF TESTIMONY.
When, on a motion for a new trial, it appears that the judge erred in admitting incompetent testimony, the verdict will not be disturbed if, upon careful examination. the court is satisfied that the testimony was immaterial, or manifestly could not have affected the verdict. In this respect the rule differs in a hearing upon writ of error from the bearing on a for a. new trial.
ERROR, WRIT of-ExCLUSION OF TESTIMONY.
The judge, refusing the motion, should come to bis conclusion without s. reasonable doubt. ' (Syllabus by the Oourt.)
4. NEW TRIAL-REFUSAL..
Motion for aNew Trial. H. A. De SaU88ure, Asst. U. S. Atty., for the United States. W. Moultrie Gourdin, for defendant. SIMONTON, J. The defendant was indicted for presenting a false daim against the United States, and forjlustaining his claim with a false affidavit. Rev. St. § 5438. He claimed to be the brother and sole heil' of John J qnes, a deceased soldier in the regular army, and as such entitled to all back pay, etc., due the soldier. In the testimony in chief,
lSee note at end of case.
Clara,; Jones, the wife of the defendant, was called by the goverument as a witness.· 'rhe defendant objected. She was sworn, but was instructed by the court that she could not be compelled to answer any question, and that she would not be permitted to disclose any confidential communication made to her by her husband. She was asked if she ever heard her husband speak of a brother by the name of John Jones. Sheanswered that she had often heard him speak of his brother Johnnie; many times before he had heard of the death of the soldier John Jones. This was all her testimony. The charge to the jury presented three questions for their consideration: (1) Was the defendant the brother of the deceased soldier? (2) Did the defendant believe that the dead soldier was his brother? (3) Pid he attempt to establish his claim by affidavits of persons who swore to the relationship, he knowing that ·they knew nothing of it? The jury found him guilty. This is a motion for a new trial upon the ground that the judge erred in permitting the wife of the defendant to be called as a witness by the government and to testify. There can be no doubt that at common law a wife is not a competent witness for or against her husband. And this is so, not on account of interest, but on the ground of public policy. 1 Green!. Ev. § 334; Stein v. Bowman, 13 Pet. 221; Lucas v. Brooks, 18 Wall. 452. There exists no statute of the United States removing this disability. No act of the state of South Carolina has changed the common law on this subject. State v. Workman, 15 S, C. 545. And, although the rule has been put upon the ground that confidential communications between husband and wife should not be disclosed, it has been applied to a case in which it was sought to prove an alibi by the wife. State v. Dodson, 16 S. C. 453. In actions for divorce, and for violence to her person, the wife has been permitted to testify. U. S. v. SmaUwood, 5 Cranch, C. C. 35. These are exceptions., It was error, therefore, to permit her to be called and to testify. But this being a motion for a. new trial in the court, and before the judge who tried the defendant, it must be to: appear that the verdict of the jury was influenced by, or that the defendant was prejudiced by, the testimony erroneously admitted. A motion for a new trial heard here is not like a hearing on writ of error before an appellate tribunal, There the rulings of the court must stand or fall by their correctness, or otherwise, as matters oflaw. Here the application is not a matter of absolute right. It rests in the discretion of the coqrt. It is to be gra,nted when a new trial would be in furtherance of justice. If, upon careful examination of the case, it appears that justice has been done, and that the verdict is substantially right; that the evidence improperly admitted could not have the verdict,-a new trial will not be because of that error. Such is the rule in CIvil cases. McLanahan v. Insumnce. Co., 1 Pet. 170; Rowe v. Matthews, 18 Fed. Rep. 132; Mining Co. v, Mining Co., 11 Fed. Rep. 125; 1 Grah. & W. New Trials, 302, note, 341, note.. In criminal ca",es, perhaps, in examining the case, the judge should come to his conclusion without a reasonable doubt. In the case at bar, although the
STA.TES V. JONES.
wife was called by the government, her testimony was wholly in favor of her husbaild. She sustained his position that he really had a brother bearing the same name as the dead soldier. Thus she gave ground for his belief, and explained and excused his claim. Her testim0ny could not have injured her husband. It did not affect the verdict, as this was in despite of it. The motion for a new trial is refused.
NOTE. Neither the removal of the disability ofinterest, nor allowing the defendant In a crIminal action to testify in his own behalf, renders the wife. of such defendant a competent witness. The rule excluding her testimony where her husband is a party rests solely npon public policy. U. S. v. Crow Dog, (Dak.) 14 N. W. Rep. 437. The common-law rule disabling the husband and wife from being wltnelllles for or against each other has been changed in Iowa so far as to permit them to testifY for each other in all cases, civil and criminal, and to testify against each other in a civil proceeding by one against the other. Parcell v. McReynolds, 33 N. W. Rep. 139. In Penmylvania, the statute only disables the husband and wife from giving evidence against each other. Pleasonton v. Nutt, 8Atl. Rep. 63. In Michignn, the husband cannot give testimony for or against the wife without her consent, nor the wife for or against the without his consent, except when the title to the separate property of either IS in litigation between them, when the statute permits either to testify to facts which lie at the foundation of the ownership of the property. Hunt v. Eaton, 21 N. W. Rep. 429. In Minnesota, neither husband nor wife can give testimony for or against the other without the other's consent, except in the case ofa civil action maint.llined by one against the other. Huot v. Wise, 6 N. W. Rep. 425. The same statute has been enacted in Utah. U. S. v. BallSett, 13 Pac Rep. 237. In Florida, the common-law rule has been modified to the extent of PElfmitting the wife to testify where her husband is a party; but the same right ill not accorded to the husband where the wife is a party. Schnabel v· .Dettll, 1 South. Rep. 692. In Vermont, the wife has been rendered a competent witness in a number of cases, but the disqualification of the hnsband exists as at common law, except in divorce cases. Witters v. Sowles. 28 Fed. Rep. 121. In Illinois, the husband and wife are rendered competent witnesses for or against each other in particular instances, among which are suits for divorce; or where the litigation is concerning the separate property of the wife; or actions upon policies of insurallce, so far 88 relates to the value and alllonnt of the property injured or destroyed; or actions against carriers. so far as relates to the loss of property, or the ,'alue and amount thereof. Treleaven v. Dixon, 9 N. E. Rep. 189. In Wisconsin, the common-law disability of the husband and wife as witnesses is not changed, even where the separate property of the wife is involved, unlellll they are parties to the suit. Carney v. Gleissner. 17 N. W. Rep. 398. The disability of the husband or wife to disclose communications made by one to the other continues after the death of one ofthem, Bradford v. Vinton, (Mich.) 26 N. W. Rep. 401; or after a divorce has been obtained, Brock v. Brock, (Pa.) 9 AU. Rep. 486. But at common law, as well Rl! under the different statntes, the incompetency of the husband or wife as witnesses does not extend to criminal prosecutions for a crime committed by one against the other, People v. Sebring, (Mich.) 33 N. W. Rep. 808; and the bigamy of the husband is held to be such a crime against the wife as will enable her to testify against him in a (Utah,) prosecution therefor, State v. Sloan, (Iowa,) 7 N. W. Rep. 516; U. S. v. 13 Pac. Rep. 237. Where competent to testify, as in the C/lse of an offense committed by one against the other, they are compellable. Bramlette v. State, (Tex.) 2 S. W. Rep. 765.
(Oi1'ouit Oourt. D. N61JJ Hamp8hirB. October 10, 1887.)
JUDGMENT--ENTRY OF-MANDAMUS TO COMPEr,.
An opinion in an equity cause in the district court was promulgated by the judge, and delivereq to the clerk, who made the following entry on his minute- book: "Bill dismissed as to A. and B. Decree." At the req uest of counsel of defendants, the clerk sent them a copy of this opinion, and a paper containing the draft of a decree, which draft, he wrote, had been "handed down with the opinion, and may be subjected to minor alterations before being spread upon the record." The defendants then appealed, supposing that the decree had been entered. Finding that such was not the case, they moved in the circuit for mandamU8 to the clerk to compel him to make such entries as would establish the opinion and accompanying paper as a decree in the cause, and to the judge to certify them as correct. Held, that the writ should be denied; the paper not being the decree, but only a draft made by the judge for the convenience of counsel, that they might see in a general way what decree he was prepared to enter, and it being no part of the official duty of the clerk to receive the opinion, or make a copy of it.
APPEAL-WHEN LIEs-ENTRY OF DECREE.
The clerk made the following entry in a cause on his minutes: "Bill dismissed as to A. and B. Decree." Held, that the inference was that the judge had announced his decision in the case, and that an appeal might be taken therefrom at once, although no opinion containing a full statement of the judge'. reaSODS had then been filed.
In Equity. On motion for writ of mandamus, and motion to dismiss appeal. H. G. Wood, for appellee. Briggs &; Huse and Charles R. Morrison, for appellants. COLT, J. This is a motion for a writ of mandamus to the district judge fOl the district of New Hampshire, and to the clerk of the district court for that district, requiring that certain papers be certified as true copies, and that certain entries be made in the docket of the court. The allegation of the defendants is that at the March term, 1885, of the district court, in the above-entitled case, an opinion was promulgated by the judge, and delivered to the clerk, and the following entry made on the clerk's book: "Bill dismissed as to Currier and Chandler. Decreej" that afterwards the clerk, in answer to a request fiom the counsel for the defendants, sent them a copy of the opinion, and also a paper containing the draft of a decree, with a note in which he said: "The inclosed is but a rough draft of the decree handed down with the opinion, and may be subjected to minor alterations before being spread upon the record;" that said written opinion, announcing the conclusions of the court in said cause, and authoritatively pronounced, was a proceeding and determination of said district judge in said causej" and prays for a writ of mandamus requiring the clerk to make such entries as will establish the above referred to paper as a decree in the cause. It appears that the defendants, supposing the decree was entered, have taken an appeal, which is DOW pending.