State v. Todd ( 1931 )

I respectfully submit that the court has not the authority to transpose the language of article 461 of the Code of Criminal Procedure so as to give it a meaning different from that which it expresses. The part of the article which I refer to, and which was copied literally from Act No. 157 of 1916, p. 379, is this: "Neither husband nor wife shall be compelled to be a witness on any trial upon an indictment, complaint or other criminal proceeding, against the other." As the lawmakers wrote the language, and according to the rules of grammatical expression, the words "against the other" have reference to the words "indictment, complaint or other criminal proceeding." In other words, it means an indictment or a complaint or other criminal proceeding against the other spouse. The court is now taking the liberty to transpose the language, thus: "Neither husband nor wife shall be compelled to be a witness against the other on any trial upon an indictment, complaint or other criminal proceeding." The article would be incomplete if the words "against the other" did not refer to the words "indictment, complaint or other criminal proceeding." It is only when the indictment, complaint, or other criminal proceeding is against the other spouse that "neither husband nor wife shall be compelled to be a witness on any trial."

That part of article 461 of the Code of Criminal Procedure was, as I have said, copied literally from the act of 1916. One of the cardinal rules of statutory construction is that, when a statute is re-enacted literally, or copied literally into a Code or revision of the laws, the re-enactment must be interpreted according to the interpretation which the court of last resort had given to the statute before it was re-enacted; because, if the Legislature was not satisfied with the court's interpretation of the language, the Legislature would have changed it. Only two and a half years before the act of 1916 was re-enacted as article 461 of the Code of Criminal Procedure, this court, in State v. Dejean, 159 La. 902,106 So. 374, 375, interpreted the language of the act of 1916, thus: "In that year it was abrogated when the Legislature adopted an act (No. 157, p. 379) permitting, but not compelling, one spouse to become a witness either for or against the other," etc.

In the prevailing opinion which will be handed down in the present case it is said: "What is said of the right, under the act of 1916, in State v. Dejean, 159 La. 900, 106 So. 374, is obviously obiter dicta, and hence cannot be regarded as precedent." That might sound very well if the Legislature itself had not accepted the interpretation which this court gave to the language of the act of 1916. It will not do to call judicial interpretations of a statute obiter dicta after the Legislature has adopted them.

But the instance cited in the prevailing opinion to be rendered in this case is not the only one in which this court had interpreted the language of the act of 1916 to mean exactly what it said, before it was copied into article 461 of the Code of Criminal Procedure. In State v. Guillory, 163 La. 100,111 So. 612, 613, the court said:

"The title of the act is:

"``To declare who shall be competent witnesses in civil and criminal cases.'

"And in the first section it is enacted * * * that neither husband nor wife shall be compelled to be a witness on any trial upon an indictment, complaint, or other criminal proceeding against the other."

I have punctuated this quotation, from State v. Guillory, exactly as it is punctuated in the text of the opinion; and, as punctuated, there can be no doubt about this court's interpretation of the language; which was adopted literally as article 461 of the Code of Criminal Procedure. The opinion in State v. Guillory was rendered in January, 1927, and the Code of Criminal Procedure was adopted in July, 1928. And the Code was compiled by a commission that gave very careful attention to the decisions of this court on the subject in hand.

If the compilers of the Code of Criminal Procedure, and the members of the Legislature that adopted it, had intended to say, "Neither husband nor wife shall be compelled to be a witness against the other on any trial upon an indictment, complaint or other criminal proceeding," they would have said it in more appropriate phraseology. To charge them with intending that their language should be so transposed is to accuse them of a very uncouth style of expression.

It is said in the prevailing opinion to be rendered in this case:

"There is no sufficient reason why, if a spouse, not on trial, is to be permitted to be a witness at all, such spouse should not be compelled to testify at the instance of the spouse on trial, as his or her witness, but there is ample reason, out of regard for the matrimonial relation, why such spouse should not be compelled to testify at the instance of the state."

The justices who subscribe to that opinion overlook the fact that, according to a fundamental law of nature, the only instance in which a husband or wife would be unwilling to testify for the other spouse would be a case in which the spouse not on trial would be a hostile witness. Where, therefore, is the so-called sufficient reason or ample reason why one spouse should be allowed to compel the other — if unwilling — "to be a witness on any trial upon an indictment, complaint, or other criminal proceeding against the other."

In the text of the statute there is a comma after the word "proceeding," but so is there a comma after the word "indictment"; so that the words "complaint or other criminal proceeding" form a parenthetical expression. If the language of the law meant merely that neither spouse could be compelled to be a witness against the other, instead of meaning that neither spouse could be compelled to be a witness on any trial upon an indictment, complaint or other criminal proceeding against the other, there would be a comma after the word "witness," as well as a comma after the word "proceeding," and the parenthetical expression would be, "on any trial upon an indictment, complaint or other proceeding." But, even then, the phraseology would be bad, and the language incomplete, because it would not express the idea that the trials on which neither the husband nor wife can be compelled to be a witness are those "upon an indictment, complaint or other criminal proceeding against the other."

My opinion is that the bills of exception numbered 3 and 5, considered together, are well founded; but that is a matter of little general importance, compared with the court's transposing the language of a statute so as to give it a meaning different from that which it expresses.