
    The People of the State of New York, Respondent, v. William P. Melski, Appellant.
    Argued April 27, 1961;
    decided June 9, 1961.
    
      
      Millard J. Noonan for appellant.
    I. It was reversible error to require defendant’s wife to testify against him. (People v. Daghita, 299 N. Y. 194.) II. The court compounded the error by charging the jury that the wife’s testimony could be considered as corroboration. III. There was no competent evidence before the court to corroborate the testimony of the accomplices. However, even if there were, the compelling of the privileged communication of the wife was not a technical error but affected a substantial right of defendant.
    
      Wallace J. Stakel, District Attorney, for respondent.
    I. The verdict was in accordance with the evidence. II. The testimony of defendant’s wife was not privileged. (People v. Daghita, 299 N. Y. 194; People v. McCormack, 278 App. Div. 191, 303 N. Y. 782; People v. Lewis, 62 Hun 622, 136 N. Y. 633; Matter of Bourne, 206 Misc. 378; Poppe v. Poppe, 3 N Y 2d 312.)
   Burke, J.

The threshold question is whether a wife can testify in an action against her husband as to the presence in her home of visitors in the company of the husband. We believe that she may since the 1 communication ’ ’ was neither induced by the marital relation nor made in confidence. This is made apparent by the facts that it was made in the presence of the third parties, and that it was voluntarily disclosed by the husband to a State trooper prior to the trial.

In a statement given to the police, defendant related how he drove a few friends to Batavia where they proceeded, allegedly without his knowledge, to illegally appropriate some guns from a local shop. Upon their return to Buffalo they stopped at his house. He stated that When his wife came into the kitchen and saw the guns she told them to leave.

The wife was permitted to testify, over objection, that she arose at approximately 6:00 a.m. on the morning in question in order to get some milk for the baby. She stated that as she entered the kitchen she saw her husband and a few of his friends. When she testified that she was not sure if there were any guns, she was reminded that she told the Grand Jury that she had seen the guns. She further testified that she and her husband as well as the others later went on a previously planned picnic.

The friends testified that the defendant was their accomplice in the crime, and that the guns were taken to his house because he was to dispose of them. They further testified that, when defendant’s wife entered the kitchen, defendant put a gun to her head. Defendant’s wife denied this.

It is urged upon these facts that defendant, in confidence, communicated to his wife the incriminating fact that accomplices were present in the home completing the crime. Appellant argues, citing People v. Daghita (299 N. Y. 194), that their presence was the disclosive act ” observed by the wife. We do not agree that this disclosure was privileged.

In Daghita (supra) .this court held, and rightfully so, that acts as well as words may be the subject of communications. However, we by no means intended by that decision to circumvent the limitation of our statute (Penal Law, § 2445) that the communications must be confidential in order to be privileged, as distinguished from the common-law rule which completely disqualified one spouse from testifying against the other. (See, generally, Richardson, Evidence [8th ed.], § 457; 8 Wigmore, Evidence [3d ed.], § 2337; McCormick, Evidence [1954], § 88.)

Most jurisdictions, as in New York, have by legislative enactments substituted a privilege based upon communications sometimes characterized as confidential. (See 2 Wigmore, Evidence, § 488, for a listing of statutes.) As is obvious, these statutes were designed to protect not all the daily and ordinary exchanges between the spouses, but merely those which would not have been made but for the absolute confidence in, and induced by, the marital relationship. (Parkhurst v. Berdell, 110 N. Y. 386.) This standard must be preliminarily applied by the Trial Judge to the challenged communication so that he may ascertain whether the witness can properly be compelled to relate it to the jury. Of course, since each case contains peculiar circumstances it is, as a practical matter, “ impossible to formulate an all-embracing definition or an infallible guide ’ ’ (Poppe v. Poppe, 3 N Y 2d 312, 315). There are, however, some principles and illustrations at hand. For example, where the communication involved ordinary business matters (Parkhurst v. Berdell, supra) or unfounded accusations of adultery or other abusive language (Poppe v. Poppe, supra; de Meli v. de Meli, 120 N. Y. 485; Millspaugh v. Potter, 62 App. Div. 521; Sheldon v. Sheldon, 146 App. Div. 430), the privilege was not held to attach. On the other hand, where there has been an admission or confession of adultery, as distinguished from an abusive disclosure (see Lanyon’s Detective Agency v. Cochran, 240 N. Y. 274; Woodrick v. Woodrick, 141 N. Y. 457; People v. McCormack, 278 App. Div. 191, affd. 303 N. Y. 782), we have allowed the privilege to be invoked, stating: “It cannot be supposed that both husband and wife would have been willing to discuss such a subject in the presence of other persons or would have consented to a repetition of the conversation by either party to it. Its nature, and the relation of the parties, forbade the thought of its being told to others, and the law stamped it with that seal of confidence which the parties in such a situation would feel no occasion to exact.” (Warner v. Press Pub. Co., 132 N. Y. 181,186.)

The application of these decisions to the present case reveals at once the common character of the communication deemed confidential. Not only was it originally made in the presence of the friends and voluntarily repeated prior to the trial, but it seems to have been made under circumstances which would indicate that it was not originally intended to be communicated to the wife. Although we hesitate to believe that the defendant put a revolver to his wife’s head, it is our opinion that defendant and the others were surprised by the wife’s untimely entrance. The attempt by the District Attorney to impeach the witness or refresh her recollection in regard to her testimony before the Grand Jury was merely reference to matter already disclosed by the husband. Although this prior disclosure may not be deemed a waiver, it, along with other circumstances, certainly confirms the fact that the communication was never intended to be confidential.

Moreover, the oft-stated presumption (not rebutted in this record) relied on by a majority of jurisdictions is that communications originally made in the presence of third parties are not confidential. (People v. Lewis, 62 Hun 622, affd. 186 N. Y. 633; People v. McCormack, 278 App. Div. 191, 195, 199, supra; Wolfle v. United States, 291 U. S. 7, 17; McCormick, Evidence, § 83, p. 171; 58 Am. Jur., Witnesses, § 381.) [L]itigants have often sought to have a spouse’s testimony as to transactions of the witness ’ husband or wife excluded on the ground that its revelation would be a violation of marital confidence. Such attempts have been generally unsuccessful, the testimony being-admitted on the ground that the acts did not constitute communications to the spouse, or that knowledge of the acts was not obtained as a result of the marital relation.” (10 A. L. R. 2d 1416-1417, and cases cited therein.) Those few States, which prohibit such disclosures, base this exclusion either upon statutes or common-law rules (10 A. L. R. 2d 1418, 1423) neither of which are applicable in New York.

In the Wolfle decision (supra) there is a suggestion that a communication may at times be made in confidence although in the presence of a third person. However, the court in that case concluded that the written communication by a husband to his wife was not privileged because of the voluntary disclosure by him to his stenographer who prepared the letter. This conclusion based upon the accepted rule in regard to communications in the presence of third parties was expressed in the following-language (p. 17): “ The uniform ruling that communications between husband and wife, voluntarily made in the presence of their children, old enough to comprehend them, or other members of the family within the intimacy of the family circle, are not privileged, Linnell v. Linnell, 249 Mass. 51; 143 N. E. 813; Cowser v. State, 70 Tex. Cr. Rep. 265; 157 S. W. 758; Fuller v. Fuller, 100 W. Va. 309; 130 S. E. 270, is persuasive that communications like the present, even though made in confidence, are not to be protected. The privilege suppresses relevant testimony and should be allowed only when it is plain that marital confidence can not otherwise reasonably be preserved ” (emphasis supplied).

The admission of this communication is no threat to the preservation of marital confidences and certainly no more sacrosanct than a confidence communicated in the presence of “ other members of the family within the intimacy of the family circle” (Wolfle v. United States, supra, p. 17).

If there were no other facts evidencing an absence of confidence, and if we could sever the “ disclosive act” from the presence of the third parties, we might be inclined to agree that the communication was confidential. For example, defendant might have told his wife, while alone, that his accomplices and the stolen goods were in the house. However, when the communication is made in their presence, we prefer to rely on the presumption that it was not deemed a confidence between husbcmd and wife, regardless of the fact that all present may have expressly sworn themselves to secrecy. While the acts and statements of the visitors may be deemed confidences between accomplices, they by no means come within the husband-wife privilege.

The implications of a reversal would be far reaching and clearly not allied with the legislative design to abolish the common-law incompetency which found it generally distasteful to incriminate one spouse by any knowledge obtained by the other, confidential or otherwise. The instant privilege, although characterized by some as an “ extremely effective * * * stumbling block # * * to obstruct the attainment of justice ” (McCormick, Evidence, supra, p. 172), is founded on a sound public policy to promote confidence between husband and wife. Its application to the circumstances here under consideration is certainly not supported by this policy.

Accordingly, the judgment must be affirmed.

Chief Judge Desmond (dissenting).

This conviction should be reversed because of the error committed at the trial in admitting against defendant, despite objection, the testimony of defendant’s wife as to what she saw in their home a few hours after the alleged burglary. It is not possible to affirm here without overruling People v. Daghita (299 N. Y. 194), and New York’s public policy as expressed in section 2445 of the Penal Law and explained in Daghita forbids such a change.

Defendant was convicted of grand larceny, second degree, on an indictment which charged that on August 9, 1959 he and three other men broke into a sporting goods store in Batavia, New York, and carried away several guns and some ammunition. It was part of the theory of the prosecution that during the early morning hours after the alleged crime the stolen goods were taken in defendant’s automobile to defendant’s home in Buffalo and that two (or three) other members of the robbery gang met with defendant in the kitchen of his home where the stolen guns were laid out on a table. Obviously, this was a secret meeting. Communication to defendant’s wife of the fact of the meeting and of its purpose and significance was essentially confidential. Allowing the wife to testify as to the fact so discovered by her in her own home was a violation of law so fundamental and so damaging to her husband’s defense that it cannot be excused without a major change in our construction of section 2445.

The prosecution put in testimony that defendant had furnished the car in which the stolen goods were transported and had acted as a lookout and that the guns and ammunition were taken to his home where they were placed on a kitchen table and where the culprits had a meeting. Two of the participants called as prosecution witnesses swore that during the kitchen conference defendant’s wife came into the room to get milk for her baby and, seeing the men and the guns, told the men to get. the guns out of her house. Then the wife herself was called to the stand as a prosecution witness. The court overruled the defense’s objections based on section 2445. She testified that about six o’clock that morning she came into the dark kitchen to get milk for her child and saw two of the alleged robbers there with her husband. She ordered them from the house.

In Daghita’s case (299 N. Y. 194, supra) this court unanimously rejected the same two arguments made by the People here: first, that actions of one spouse in the presence of another do not constitute confidential communications; and, second, that absence of an intent to make defendant’s actions confidential was shown by the fact that a coculprit was present when the disclosure took place. Daghita was a policeman who stole merchandise from a store he was supposed to protect. He was observed by his wife bringing the goods into his home during the night and hiding them there. On one occasion, so the wife testified, she went with her husband and his accomplice to the store and sat in an automobile while the two men brought out stolen articles. In reversing the Daghita conviction, we held (p. 199) that the term “ communication ” includes 1 ‘ knowledge derived from the observance of disclosive acts done in the presence or view of one spouse by the other because of the confidence existing between them by reason of the marital relation and which would not have been performed except for the confidence so existing ”, Thus we turned into an express holding the dictum found in People v. Woltering (275 N. Y. 51, 57, 61). As we pointed out in DagMta, there is no essential difference between testimony as to what a husband told his wife and testimony as to what he allowed her to learn for herself from observing his conduct.

As to defendant’s associates being in the kitchen with him when the wife made her observations, it is true that comunications made in the presence of a third party are usually regarded as not privileged because not made in confidence. But confidentiality sometimes exists even in such instances (Wolfle v. United States, 291 U. S. 7, 14, 17). When the presence of the third person or persons is, as in DagMta (supra) and as in this case, part of the very fact confidentially communicated, the presence of those others cannot destroy confidentiality.

The opinion for affirmance in this court suggests that the husband’s privilege under the statute was in some way removed or waived because the wife testified before the Grand Jury (contra, see People v. Eckert, 2 N Y 2d 126, 128) and because the husband made pretrial admissions including the statement: ‘ ‘ My wife got up and saw that there were guns laying on the kitchen table. She told them to get out and get the guns out which they did.” There is nothing to show that the husband consented to his wife’s giving the Grand Jury testimony or that she then knew anything about the law of husband-wife privilege. The husband’s statement to a State trooper before trial said nothing about waiver. A waiver to be effective would have to be made at the trial and at the trial defendant strongly objected to any testimony by his wife.

Proof of the defendant’s guilt is strong but much stronger is our public policy as announced in People v. Daghita (299 N. Y. 194, supra). Founded on “ the sanctities of the marriage relation ’ ’, the rule as to nondisclosure is to be strictly construed ” and an error in relation to it is not technical but affects the substantial rights of the defendant ”.

The judgment should be reversed and a new trial ordered.

Judges Fuld, Froessel and Foster concur with Judge Burke ; Chief Judge Desmond dissents in an opinion in which Judges Dye and Van Voorhis concur.

Judgment affirmed. 
      
      . The privilege really belongs to the spouse against whom the testimony is offered. For example, if timely objection is made, not only can the witness-spouse not be compelled to testify, but she could not even voluntarily testify to any confidential communication. (People v. Wood, 126 N. Y. 249.)
     
      
      . If believed, this alone would be enough to remove the communication from the protection of the privilege. Both the majority and concurring opinions in the Poppe case acknowledged that the statute was never designed to forbid inquiry into the personal wrongs committed by one spouse against the other.
     