UNITED STATES v. DEGE
Legal provision: 18 U.S.C. 371
Argument of Jerome M. Feit
Chief Justice Earl Warren: Number 14, United States of America, Appellant, versus Lucille Aldine Dege.
Mr. Jerome M. Feit: Mr. Chief Justice, may it please the Court.
This case is here on direct appeal from an order of the District Court for the Southern District of California, dismissing an indictment which charged appellees, who are husband and wife, with conspiracy to smuggle psittacine bird into this country from Mexico.
The single issue on this appeal is whether or not husband and wife can conspire under the federal conspiracy statute.
There is no additional evidentiary question as to whether one spouse may testify against the other nor as to whether confidential communications between husband and wife may be revealed, solely whether husband and wife are two separate individuals within the purview of a federal statute.
The court below relying upon the ancient notion of marital unity found that husband and wife were not two persons but one and on this basis, dismissed the indictment.
We think that ruling was incorrect.
The federal conspiracy statute 18 U.S.C. 371 which is set forth at page 2 of our main brief punishes conspiracy between two or more persons.
There is no limitation in that statute which says, "Two or more persons except if they're husband and wife."
In present day terms it is clear, we think, that husband and wife are legally separate individuals.
Plus in old states under the married women statutes, she may own her property separate and apart from her husband.
She may sue and be sued in tort and in contract.
She may contract with third parties.
Her citizenship does not follow that of her husband and quite significantly, we think, in the overwhelming majority of jurisdiction she is deemed a separate legal person who can civilly contract with her husband.
In our view, if man and wife are two separate individuals, two separate persons, for the purpose of contractual capacity, we certainly think that they are within reach and are two separate persons under the federal conspiracy statute.
Justice John M. Harlan: What impact does that do you think that this Court's decision (Inaudible)
Mr. Jerome M. Feit: Mr. Justice Harlan, I have read the Hawkins the decision.
It deals with a rule of evidence which is based upon the notion, the present day notion that in order to protect the domestic relationship of husband and wife, neither spouse should be allowed to testify against the other.
It does not in our view deal with this problem at all because on -- on the theory that it did, it would mean that husband and wife could not be convicted together of the subsequent of defense, which is certainly not the law.
Again, if a third party joined the conspiracy it is clear that husband, wife and the third party, each to be separately tried and punished.
We think that to say that the Hawkins case, applies here is to expand it beyond its purpose.
It is in fact to say, that under all circumstances despite the evidence, despite the proof, husband and wife upon some outmoded fiction of unity cannot conspire.
Turning to the criminal status, criminal independence, the criminal responsibility of a married woman present time is clear that in those jurisdictions, majority of jurisdictions which have dealt with the problem of whether one spouse may steal from another which derive from the same fiction of the unity the rule that neither spouse could steal from one another, is derived from the same fiction of unity which the District Court applied here to support this notion that they could not conspire together.
The majority of jurisdictions in this country which have dealt with this problem have held husband and wife can steal from one another if they are separate and discreet individuals.
Most recently in fact and I might point out this is noted at page three of our reply brief, the New York Court of Appeals in 1954 held in the case of People against Morton and it's cited to page two and three of our reply brief, held that a husband may steal from his wife but she was a separate person within the New York larceny statute.
Again at the common law there was a presumption that a married woman who committed a crime in her husband's presence acted under his control and coercion.
This presumption derived from perhaps a more realistic view of the legal relationship of husband and wife at common law.
That is that the wife was subservient to and under the control of her husband, that she was under his dominance, nonetheless and at least 21 jurisdictions that we have been able to find this presumption has been overturned and in those jurisdictions in order to support the defense the married woman must show affirmatively that she was acting under the control of her husband.
Justice Potter Stewart: And in that respect what is the presumption and was the --what is the way that the presumption if any in the Federal (Voice Overlap) --
Mr. Jerome M. Feit: In the Federal Court the presumption is very slight Mr. Justice.
Justice Potter Stewart: Is this a matter of case law or legal --
Mr. Jerome M. Feit: This is a matter of case law and Federal Courts.
In the State in some jurisdictions it is a matter of statute.
The legislature had abolished the presumption.
In a number of other states I believe six or seven, this is set out at page 21 of our main brief, page 21 and 22, in six or seven States, the -- the termination reputing any presumption was by judiciary.
Justice Potter Stewart: So it does continue a presumption in the federal court in federal criminal cases and a weak resumption you tell us?
Mr. Jerome M. Feit: May I say, at least from reading the cases, if there is a presumption it is at -- of the weakest nature.
Justice Potter Stewart: (Inaudible)
Mr. Jerome M. Feit: Exactly the point that I wanted to make was even in those states which retained the presumption, a slight showing that the wife was acting independently off her husband, revised it.
At the -- again at the --
Justice Potter Stewart: Could that be showing all in the federal court which he be entitled to the directed verdict of acquittal, if there were no showing the contract made by the constitution?
Mr. Jerome M. Feit: I -- I do not -- I do not think so.
I think the trend.
I might say the trend of recent decisions exemplified by United States against Anthony, a District Court case, would seem to indicate that the presumption is either hanging by a slim thread and ready to go, I think perhaps that federal court view would be following the -- the majority view I think in any recent cases -- any new case which might arise.
Not only -- another example of this independent status to the married woman, was that, she could always be guilty and contrived with inciting her husband for the commission of a substantive offence.
Certainly it seems as if a married woman can control and direct her husband's criminal action, criminal activity.
She can be charged with agreeing with him in the commission of crime.
What we think is that the ruling below was to read in to the federal conspiracy statute an exception which derives from an ancient notion, an ancient notion of marital unity which derived essentially from the writing of text writers from Hawkins and from thence into the case law.
We think that in light of the present day realities which indicate that all circumstances, but civilly and criminally, a wife is legally distinct and separate from her husband but this Court may read that exception out and say that the District Court was wrong, it was improperly reading the federal conspiracy statute.
In this recent New York case of People against Morton which is referred to at page two and three of our reply brief and this is a response to the claim by my opponent that we request the Court to indulge in judicial legislation.
That same argument was made in the New York Courts with respect to this -- this concept that husband and wife cannot steal from one another, a concept which derived from the same fiction of unity as this conspiracy rational adopted by the court below.
The District Court recognized -- I mean -- I'm sorry, the appellant division in New York recognized that this was an essential judicial function, that where legislature had not acted, the New York Courts very properly could view the larceny statute the word “another” as including a married woman.
So here, we think it is a proper function of this Court to recognize that a vestige, an ancient vestige of the common law is no longer in force and at the conspiracy statute means what it says, that two or more persons, and not two or more persons, excluding husband and wife, but two or more persons who conspire can be charged and convicted.
In 1913, Mr. Justice Holmes referred to this ancient notion for marital unity as now vanishing fiction.
We certainly believe that this Court will recognize in the present day considerations and the present day conditions that this fiction has actually vanished.
Moreover, we do not think that there are any present day policy considerations which would support the retention of this vestige, this notion that husband and wife are one and therefore cannot conspire together.
Those that have been asserted in our view are essentially evidentiary rules which are adequately protected under existing rules of exclusion.
So for example Mr. Justice Harlan, Hawkins decision announces this Court's view that either spouse could testify against one another.
Certainly it is no reason we think to -- there is no reason to expand that decision, beyond its limits to say that under no circumstances apart from what evidence maybe adduced, husband and wife cannot conspire together.
Similarly the argument deriving from the notion of marital confidences, there is a similar evidentiary rule which we do not challenge here and which is validly recognized, the confidential communications between husband and wife are not to be revealed.
Certainly, that rule will be applied on trial, but again it is a -- there is no reason, no justification, we submit, for extending that rule so that it becomes an immutable substance of rule which carves out for husband and wife an area of immunity from criminal liability.
Other individuals having a relationship of confidence certainly do not enjoy such a position in a law.
Husband and wife can conspire with their children.
Brothers and sisters can conspire together.
Attorney and client have a confidential communication privilege relating to their confidences and certainly my opponent would not say that for that reason they're entitled to a rule precluding criminal responsibility if they conspire together.
We recognize -- we think this is the essence of the matter that at a trial there maybe in any particular case difficulties in proof.
But the question here is whether husband and wife can be charged under the federal statute.
As we suggest in our main brief, it might be appropriate at the trial of any particular case for the trial judge to instruct the jury that associations between husband and wife certainly do not have the same -- do not -- would not have the same inference that perhaps association, clandestine association between strangers might have with respect to conspiracy.
Again this presumption of rule which I had mentioned might be necessary to indicate to the jury that there was a presumption that one of the partners whether husband or wife was under the control of the other and they might indulge in that presumption, but this all goes to the question of proof?
Justice Felix Frankfurter: In respecting all this your arguing first off what -- what I've heard, it goes to immediate question of evolution in the common law, isn't that affair (Inaudible) arguing?
Mr. Jerome M. Feit: Yes Mr. Justice.
Justice Felix Frankfurter: But we are dealing with the statute here, and what I'd like to ask you is what do you think if this case could come up before this Court in 1868 the year after the statue was originally passed, do you think that if any of these (Inaudible) that would have been construed the way you want us now construe it or I'll give you a later date 1909 it was readopt -- adapted by the penal code, do you think then it would have been construed other than if you are one person and not being husband and wife but that -- that would have been the construction, wouldn't it?
Mr. Jerome M. Feit: I -- I would -- I would agree with that.
The construction in 1868 or construction in 1909 would have been that.
Justice Felix Frankfurter: So that the statute then in effect is presented as we're not say two or more persons not being husband and wife, you couldn't possibly (Inaudible)
Mr. Jerome M. Feit: Exactly.
Justice Felix Frankfurter: What I'm suggesting is if that is the construction that unreasonably is attributed to that language either in 1867 or 1909 that does not probably now we need that reply qualification.
Mr. Jerome M. Feit: May I answer the question this way Mr. Justice.
I agree that in 1867 and in 1909 such a construction would be proper because of this judicial theory which had been engrafted into -- in interpreting the federal conspiracy statue.
We could have argued here that if by readapting the statute in 1948 as part of the re-adaption in Title 18 to positive of law and by not noting the exception at the time when husband and wife were clearly separate and discreet legal individuals.
Congress indicated an intent to cover them in the Statute.
Justice Felix Frankfurter: (Inaudible) could argued, but you won't?
Mr. Jerome M. Feit: No were not.
But we argue which we think is the -- is the proper argument.
This is a question of capacity.
That this question as -- derives from a judicial rule which was read into the conspiracy statute.
Justice Felix Frankfurter: What if it's (Inaudible)
Mr. Jerome M. Feit: -- but certainly -- certainly with respect to the insanity rule for example, Congress did not intend to include in every criminal statute adopted any specific rule of insanity existing at any particular time.
And certainly this Court would not say that a Statute is frozen if adopted in 1867 when -- when the rule might have been solely the difference between right and wrong.
Justice Felix Frankfurter: That is merely of question of proof.
That is not a qualification for taking control out of the focus of the statute.
Mr. Jerome M. Feit: Well, by the same --
Justice Felix Frankfurter: What if -- I suppose when you're saying that this is not -- it didn't come up in 1867 --
Mr. Jerome M. Feit: Well, I -- I will let --
Justice Felix Frankfurter: -- (Voice Overlap) 1909 and therefore there hasn't been a past law and this is 1959 that's your argument.
Mr. Jerome M. Feit: Yes Mr. Justice.
Justice Potter Stewart: Now two Court appeals -- you represented to us and I agree with your position on that (Inaudible) the Court Appeals on the -- on appeals with Fifth Circuit?
Mr. Jerome M. Feit: Yes sir.
Justice Potter Stewart: I appreciate that your opponent said that District Columbia court is perhaps just (Inaudible) local rule, but in any even when did -- when -- when those decisions with reference to any re-enactment of the federal statute?
Mr. Jerome M. Feit: Those decisions -- the District of Colombia decision was in 1946.
The Fifth Circuit, the first Fifth Circuit decision was in 1955.
Justice Potter Stewart: Right.
Mr. Jerome M. Feit: I believe it was 1955 Mr. Justice.
They have been later Fifth Circuit decisions which we also know in 1958, but the District of Colombia Circuit decision was in 1946.
Justice Potter Stewart: And then there was at least formal re-enactment of the statute in 1948.
Mr. Jerome M. Feit: In 1948 certainly when Title 18 was readopted --
Justice Potter Stewart: (Voice Overlap) --
Mr. Jerome M. Feit: -- positive law, yes sir.
Justice Felix Frankfurter: But when they re-enacted it in 1948, Title 18 re-enacted, didn't (Inaudible) state of change the law?
Mr. Jerome M. Feit: Yes, and the revises no -- it would so stay (Voice Overlap) --
Justice Felix Frankfurter: (Voice Overlap) you don't need to state it unless we heard you say so.
They don't need to change it unless we go straight, is that right?
Mr. Jerome M. Feit: That's right sir.
Justice Felix Frankfurter: If you're drawing heavily on (Inaudible) to say that in 48 Congress enacted by implication the decision of the District Columbia Court of Appeals.
That's it talking a little far --
Mr. Jerome M. Feit: I -- I --
Justice Felix Frankfurter: Re-enacted --
Mr. Jerome M. Feit: We -- as I --
Justice Potter Stewart: At least the law wasn't conflict as of that date.
Mr. Jerome M. Feit: The law was, yes.
And I might mention that the decision --
Justice Potter Stewart: (Voice Overlap) --
Mr. Jerome M. Feit: -- in California was in 1926 the first one in 43, the second one.
We think then that this ancient notion of marital unity cannot support the reading of conspiracy statute which the District Court has given it nor do we think that there are any policy considerations which would warrant such a reading in the statute.
We think therefore that this Court should reverse the order of the District Court and remand the case back to that Court for further proceedings under the indictment.
Chief Justice Earl Warren: Mr. Whelan?
Argument of Thomas Whelan
Mr. Thomas Whelan: Mr. Chief Justice, members of the Court.
I hope the Court won't mind of my stating that this, on the occasion of my first appearance before the Court where I addressed the Court in a case that I say that I feel rather good about coming here from San Diego to represent clients who are -- what we might call just the average ordinary person to come here in a contest with the United States Government itself and to be heard by this Court, we have all of the right of these two individuals being as fully recognized and as fully protected as the rights of the Government itself.
But on Saturday evening I received an advanced copy of the reply brief of the Government and today I received the printed copy from the reply brief.
And in this printed reply brief there are about two points raised.
One being, that some consideration ought to be given to the proposition that because in 1948 following the decision by the Circuit Court of the District of Colombia that the Congress didn't make any exception in favor of husband and wife with reference to this conspiracy statute.
There are a few notes that I've had made in that regard.
I'd like to call of Court attention that this conspiracy Statute was – as has been stated here, first inactive in 1867.
Now, for a period of approximately 42 years after that the statute was not changed or re-enacted and during that period of time there were judicial decisions of State Courts which held that husband and wife alone could not be guilty of a crime of conspiracy.
One of which was the Supreme Court of the State of California in the case of People versus Miller which is referred to inside and I think a brief the appellants as well as the appellees.
Again, this statute was re-enacted in 1909 and there wasn't any change made in the first six lines at least of the -- first six words of the statute.
Then in 1940 when the statute was re-enacted into the criminal code 18 U.S.C. why there had been at that time the decision in the case of Dawson versus the United States which is a decision by the Court of Appeals of the Ninth Circuit which unequivocally held that husband and wife could not because of their common law unity constitute the two persons who could conspire under the federal statutes.
And in 1940 when Congress re-enacted the statute it again used the same first six words, "If two or more persons conspire".
Now, under the familiar rule of legislative re-enactment without change operates as an adoption of the prior judicial construction given to statute, we feel that Congress clearly intended that the conspiracy statute as it re-enacted in 1940 should not include husband and wife alone and that husband and wife were to be accepted from the provisions of the conspiracy statute.
Now, the next decision of any moment was in 1943 in the case of Gros versus The United States and again the -- the Ninth Circuit affirmed the holding that husband and wife alone could not be guilty of the crime of conspiracy against the United States.
And the first decision of the Federal Court was this case for Johnson versus the United States decided by the Circuit Court of Appeals of the District and that is referred to in the brief but I won't comment further on it, but it seems to me that that leaves as sort of a situation where if there's going to be any change in the law, the change ought to be made by the Congress and not by the Court.
Now, I --
Justice Potter Stewart: Mr. Whelan so that I could understand your position is to what the law now is, would you concede that there could be a criminal conviction of Mr. and Mrs. Dege, how do you pronounce your --?
Mr. Thomas Whelan: Dege is the way you pronounce it Your Honor.
Justice Potter Stewart: If -- if Lucille Dege and Ernest Dege and John Smith had been indicted of a criminal conspiracy, could all three of them convicted?
Mr. Thomas Whelan: I -- I think that's correct Your Honor.
I think all three because I think that the two Deges constitute one person at least under as the way I understand the Federal construction in our Circuit at least John Smith would be the other person and therefore there would be two or more persons and I think that both of the Deges if they were charged in such an indictment could be convicted.
Justice Potter Stewart: Well, and though -- you said the one person, but each separately could be convicted if --
Mr. Thomas Whelan: Well, if I -- I would -- I would think so your Honor.
Justice Potter Stewart: And each sent to separate prisons.
Mr. Thomas Whelan: Well, there actually are two physical persons but as a matter of the law they're one identity.
I think Dege alone could be charged in a conspiracy with John Smith or Mrs. Dege alone, but two of them together with John Smith but not the two themselves alone.
I think -- I don't think the Honorable James Carter would be flattered by the statement that he decided this on an ancient notion of marital unity.
I think his words were that he follow the Circuit and that's -- that's what he did, but the -- I think that the things that have been argued here have been discussed pretty generally in this brief which we filed.
There is one more thing that was raised in this reply brief which is a reference to the case of People versus Morton, this New York case where a husband was indicted for larceny of his wife's property and before the married women's statute of New York, he couldn't have been indicted.
And I think that's what the Court says in their opinion, but all that -- this case says is this, that the New York legislature has the right to pass statutes which change the status of married people as to property rights differentiating from their status prior to those statues by the common law.
And therefore when the statute says that the husband doesn't have any property interest in his wife's property that it belongs to her, he can be prosecuted for -- for stealing that property and it doesn't have any effect upon the marital unity or the marital relationship itself, it just has to do with that particular question of property that's involved and we have the same situation in California I believe in the footnote here they cite the case of People versus Gros right in 59 Cal. App. 706 which I -- wherever I start in 19 -- and that's a case where the an indictment was returned charging a man -- woman with the investment of her husband's property and forgery of her husband's name to require that property.
And the demurrer and the motion set aside the indictment or sustained by the trial court, but reversed by the District Court of Appeals saying that the -- because that the property rights of the husband and wife weren't separate, the wife could be prosecuted for stealing the husband's property or forging his name.
But at the same time that the District Court of Appeals was affirming this doctrine that it stated in People versus Gros, some years later in this Macmillan case the District Court of Appeals says, that husband and wife can't commit conspiracy in California and the rule was laid down in People versus Miller, but says that Justice who wrote that opinion the Supreme Court ought to do something about that or the Legislature ought to do something about it.
In other words, if there was to be a change in the law and it was recommended that the Supreme Court or the Legislature take some action to declare the status of husband and wife so that there would be a positive statement again whether they could or could not be guilty of conspiracy.
Justice Potter Stewart: This reference is to a California Supreme Court and not the Legislature.
Mr. Thomas Whelan: That is correct and the California Supreme Court denied the petition for a hearing which was asked by the prosecution in that case.
And the legislature of course never accepted the invitation to declare that husband and wife could be guilty of conspiracy.
Now, I think from the language of the Government's brief here that they're asking this Court to not only reverse the ruling of the United States District Court, but they're asking this Court to lay down a series of rules of procedure in the -- and the changed rules of evidence that have been a long time in existence and it seems to me that all of the problems that they raise in their brief are matters that ought to be addressed to the Congress and not to this Court.
Although counsel can see no difficulty because of a ruling in the Hawkins case if this -- if this case was to be reversed here, it seems to me like there would be nothing but difficulty, there would be nothing but questions of the rights in some cases of a defendant even testifying for herself or himself that depending upon the objection of -- of the other party if often this to be given effect, well, I don't know where husband and wife would be if they happen to be adverse to each other at the time of the trial.
And it seems to me that the -- the reasoning behind the decision in the case of Dawson versus the United States and Gros versus United States are well-founded and sound and that the Congress must have had the Dawson case in mind at least in 1940 and that the Congress impliedly approved the rule in the Dawson case and therefore that's what the statute means.
It means, if two or more persons accepting husband and wife and what according to Dawson that's what -- that's what the statute means and the legislature -- or the Congress must have meant the some things when they re-enacted the statute in 1940, but the Government wants this Court to say is this.
“If two or more persons including husband and wife conspire” and now, we feel, I certainly feel as a matter of correct procedure that if the changes to be made in the statute that are not to be made by the Congress and we respectfully submit the matter --
Justice Potter Stewart: I just -- before you sit you down.
I -- I don't quite understand your concern about the effect of the Hawkins decision (Inaudible) in this situation.
Mr. Thomas Whelan: Well, lets take this situation.
If the Government should indict a man and his wife for the crime of conspiracy and then should indict the man for two or three more substantiative offences relating to the conspiracy, but not indict the wife as to those substantiative offences.
If the prosecution put on the case -- the Government put on the case and it was a sort of a thin line proposition, the wife who was actually not guilty of any crime wanted to take the stand in her own behalf and testify in exonerating herself she might implicate her husband.
Therefore, if he objected to his wife of his testifying as he didn't – would have a right to do under Hawkins she'd be precluded it would seem to me from going ahead and testifying on her own behalf, exonerating herself because of the objection he made.
And that's a complication that it seems to me could have occur and what is to be done about it.
Justice Potter Stewart: Well now, how would any difficulties be present and that situation that would not be present if they were both indicted and being tried or substantive offences for the same -- commission of the same substantive offence or conversely have in any problems to be present in your hypothetical case it wouldn't be present if Mr. and Mrs. Dege or has a -- a codefendant John Smith.
But you've conceded (Voice Overlap) --
Mr. Thomas Whelan: Well, I think if they had a codefendant that this privilege of -- in favor the husband wouldn't -- wouldn't control the admission of the evidence there if she could testify against John Smith and she could exonerate herself and I -- I don't see how in that case that the husband could prevent her from testifying in -- on her own behalf.
There might be some rule of evidence that would provide that the evidence wouldn't be considered admissible against the husband.
I don't know how that would work out but I think that she could testify if there was a third defendant but if it were just her husband alone I rather doubt that she could.
Justice Potter Stewart: Well, there is certainly at least to be questioned to whether or not she could testify, if there is a third defendant it would be effective for her to testify it would be adverse to her husband under the profits decision that that there at least would be a question.
Mr. Thomas Whelan: There would be certainly a question but I don't think the question would be as great as that she and her husband were alone indicted.
Supposing they were just indicted on the conspiracy charge and she wanted to testify and her husband didn't want her to, wouldn't that create a problem?
Justice Potter Stewart: Well, is there any difficulty about having a severance and having separate trials for conspirators even though you know there are only two conspirators?
Mr. Thomas Whelan: Well, I would think that as a practical proposition you never get separate trial.
Justice Potter Stewart: Why not is there any difficulty about it?
Mr. Thomas Whelan: Well, as a practical the proposition there is I'm defendant a lot of conspiracy issues and I think in every case that made a motion for a severance and I have normally --
Justice Potter Stewart: Normally that's the advantage of the defendants, isn't it?
Mr. Thomas Whelan: To have a severance, yes.
If it can be obtained, but it's very difficult to obtain one.
Justice Potter Stewart: That wouldn't be very evidentiary testimony or problems that you suggest and I -- wouldn't they give a reason for a Court of (Voice Overlap) --
Mr. Thomas Whelan: Well, yes.
Justice Potter Stewart: -- discretion to grant separate trail.
Mr. Thomas Whelan: If -- if there would be pronouncement from the Congress or some direction or suggestion by this Court that the Trial Courts ought to grant severances in such situation it probably would mean they were able -- the severance would be easier to get and it would be beneficial to defendants --
Justice Potter Stewart: In other words am I right in understanding that she -- you're suggestion is not the pocket which controls the disposition of the problem in this case but that in view of Hawkins their would be practical difficulties in trying husband and wife together as co-conspirators, is that it?
Mr. Thomas Whelan: That's it, but I don't say that Hawkins doesn't control the decision in this case.
Because it seems to me that Hawkins goes far enough to say that as a matter of public policy that marital unity ought to be preserved and for that reason husband and wife should not -- should not be permitted to testify against the other over objection.
And if that's good reasoning then husband and wife should not be joined together as conspirators because in such a case is that very unlikely there would be a separation between husband and wife.
One would blame the other and it would result in a widespread differences and the breaking up for that particular home and would have a tendency to -- to cause that effect in every case where two parties, husband and wife alone were conspirators, I think just as it would cause difficulty as set by the Supreme Court in Hawkins case where a wife testified against her husband or vice versa.
Chief Justice Earl Warren: Very well.