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FUNK v. UNITED STATES.
290 U.S. 371 (54 S.Ct. 212, 78 L.Ed. 369)

FUNK v. UNITED STATES.

No. 394.

Argued: Nov. 13, 14, 1933.

Decided: Dec. 11, 1933.

opinion, SUTHERLAND [HTML]
Syllabus from 372 intentionally omitted

Messrs. John W. Carter, Jr., of Danville, Va., and Charles A. Hammer, of Harrisonburg, Va., for petitioner.

The Attorney General and Mr. Angus D. MacLean, Asst. Sol. Gen., of Washington, D.C., for the United States.

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Mr. Justice SUTHERLAND delivered the opinion of the Court.

The sole inquiry to be made in this case is whether in a federal court the wife of the defendant on trial for a criminal offense is a competent witness in his behalf. Her competency to testify against him is not involved.

The petitioner was twice tried and convicted in a federal District Court upon an indictment for conspiracy to violate the prohibition law. His conviction on the first trial was reversed by the Circuit Court of Appeals upon a ground not material here. 46 F.(2d) 417. Upon the second trial, as upon the first, defendant called his wife to testify in his behalf. At both trials she was excluded upon the ground of incompetency. The Circuit Court of Appeals sustained this ruling upon the first appeal, and also upon the appeal which followed the second trial. 66 F.(2d) 70. We granted certiorari, limited to the question as to what law is applicable to the determination of the competency of the wife of the petitioner as a witness.

Both the petitioner and the government, in presenting the case here, put their chief reliance on prior decisions of this court. The government relies on United States v. Reid, 12 How. 361, 13 L.Ed. 1023; Logan v. United States, 144 U.S. 263, 12 S.Ct. 617, 36 L.Ed. 429; Hendrix v. United States, 219 U.S. 79, 31 S.Ct. 193, 196, 55 L.Ed. 102; and Jin Fuey Moy v. United States, 254 U.S. 189, 41 S.Ct. 98, 65 L.Ed. 214. Petitioner contends that these cases, if not directly contrary to the decisions in Benson v. United States, 146 U.S. 325, 13 S.Ct. 60, 36 L.Ed. 991, and Rosen v. United States, 245 U.S. 467, 38 S.Ct. 148, 150, 62 L.Ed. 406, are so in principle. We shall first briefly review these cases, with the exception of the Hendrix Case and the Jin Fuey Moy Case, which we leave for consideration until a later point in this opinion.

In the Reid Case, two persons had been jointly indicted for a murder committed upon the high seas. They were tried separately, and it was held that one of them was not a competent witness in behalf of the other who was first tried. The trial was had in Virginia; and by a statute of that state passed in 1849, if applicable in a federal court, the evidence would have been competent. Section 34 of the Judiciary Act of 1789 (28 USCA § 725) declares that the laws of the several states, except where the Constitution, treaties, or statutes of the United States otherwise provide, shall be regarded as rules of decision in trials at common law in the courts of the United States in cases where they apply; but the court said that this referred only to civil cases, and did not apply in the trial of criminal offenses against the United States. It was conceded that there was no act of Congress prescribing in express words the rule by which the federal courts would be governed in the admission of testimony in criminal cases. 'But,' the court said (page 363 of 12 How.), 'we think it may be found with sufficient certainty, not indeed in direct terms, but by necessary implication, in the acts of 1789 and 1790, establishing the courts of the United States, and providing for the punishment of certain offences.'

The court pointed out that the Judiciary Act regulated certain proceedings to be had prior to impaneling the jury, but contained no express provision concerning the mode of conducting the trial after the jury