[Copyrighted Material Omitted] [Copyrighted Material Omitted] Mannix & Sullivan, Beach, Simon & Nelson, and R. E. Moody, all of Portland, Or., for plaintiff in error.

Clarence L. Reames, U.S. Atty., and Robert R. Rankin, Asst. U.S. Atty., both of Portland, Or.

Before GILBERT and ROSS, Circuit Judges, and VAN FLEET, District Judge.

GILBERT, Circuit Judge (after stating the facts as above).

It is assigned as error that the court overruled the demurrer to the indictment, and it is contended that the indictment is fatally defective in that the words 'trial' and 'issue' were used in referring to the hearing before the United States commissioner, in which the alleged perjured testimony was given, for the reason that a United States commissioner is without jurisdiction to try any issue between the United States and the person charged with crime. We find no merit in the contention. The indictment sufficiently shows what the proceeding was. The plaintiff in error was in no way prejudiced by the fact that the indictment against him described the proceeding before the United States commissioner as the trial of an issue. He was well aware of the nature of the proceeding, and had advised the witness Esther Wood as to the testimony she should give at the examination. In a sense there are 'issues' to be tried on such a preliminary examination, the issues whether a crime has been committed, and whether there is reasonable ground to believe that the defendant committed it, and these issues are tried for the purpose of deciding whether the defendant shall be held to answer for the crime charged. The plaintiff in error cites the case of State v. Furlong, 26 Me. 69, in which, in an indictment for perjury, it was alleged that a certain person accused of crime had been put upon trial before a justice of the peace, and that the justice of the peace had proceeded to hear and determine the matter, that the defendant was a witness on that trial and testified falsely, 'to cause the accused to be convicted of the offense charged. ' In that case the court held that it appeared from the indictment that the justice of the peace had assumed jurisdiction to try and pass finally upon the guilt or innocence of the accused, and thus had exercised a jurisdiction with which he was not vested. But it does not appear from the indictment in the case at bar that the commissioner attempted to exercise jurisdiction to determine the guilt or innocence of Gronich, and it does distinctly appear that the proceeding was a preliminary examination had, not upon an indictment or an information, but upon a 'complaint' as provided in Revised Statutes, Sec. 1014 (U.S. Comp. St. 1901, p. 716)), as amended by the Act of August 18, 1894, c. 301, 28 Stat. 416, with a view to holding Gronich to answer for the crime charged.

It is contended that it was error to deny the motion of the plaintiff in error for a directed verdict in his favor on the ground that there was no evidence to sustain a verdict against him, that Esther Wood had not been arrested at the time when the defendant is charged with having committed the crime set forth in the indictment, that there was no evidence that she knew she would be arrested, and that the crime of subornation of perjury cannot be committed unless the person charged therewith had in mind some particular tribunal or proceeding before which the perjury should be committed. But there was evidence that, at the time when the plaintiff in error advised Esther Wood concerning her testimony, he was aware of the arrest of Gronich, that he knew that Esther Wood was the wife of Gronich, and that all of his advice to her as to her testimony had reference to the testimony that she was to give on the examination of Gronich before the United States commissioner, that when she asked the plaintiff in error if he did not think it best for her to leave town so that the officers could not get her, he said no, that she might as well go down and give herself up, that they were bound to get her. In addition to this, when she that the plaintiff in error repeated his advice to Esther Wood during the investigation before the commissioner, and that, when she told him that she had followed his instructions, he approved her conduct in so doing. There was other evidence to sustain the verdict. In considering the question whether there has been error in refusing a directed verdict for the defendant on a criminal trial, this court can inquire only whether there was any evidence to sustain the verdict. Hedderly v. United States, 193 F. 561, 114 C.C.A. 227; Boren v. United States, 144 F. 801, 75 C.C.A. 531.

We find no merit in the contention that it was error to permit the introduction in evidence of the complaint against Gronich which had been filed in the preliminary hearing before the commissioner. It was properly admitted to prove one of the steps in the proceedings in which the alleged false testimony was suborned to be given, and to sustain the allegations of the indictment. But if it was immaterial to the issue as against the plaintiff in error, as he now contends, its admission could not possibly have prejudiced him on the trial of the case in the court below. The contention that the testimony of Esther Wood tending to show the commission of the crime, and her testimony in regard to post cards exhibited to her at the hearing before the commissioner, were inadmissible, is so plainly without merit as to require no discussion.

It is assigned as error that the court below admitted the testimony of Esther Wood to the effect that she had sworn falsely at the preliminary hearing before the commissioner, for the reason that on that hearing she was incompetent to be a witness against Gronich, to whom she had been married in December, 1910, and whose wife she still was. It does not appear that any objection whatever was made to her testimony in the court below, nor does it appear that, when she testified at the preliminary hearing, she did so against her consent, or without the consent of Gronich. Error cannot be predicated on the admission of her testimony in the court below as to what she had testified at the preliminary hearing, unless, when testifying at that hearing she was, by virtue of the marital relation alone, under such disability that her testimony could not lawfully be received at that hearing. The plaintiff in error contends that the question of the admissibility of her testimony was determined by section 1535, c. 21, of Lord's Oregon Laws, which provides:

'In all criminal actions, where the husband is the party accused, the wife shall be a competent witness, and when the wife is the party accused, the husband shall be a competent witness; but neither husband nor wife, in such cases, shall be compelled or allowed to testify in such case unless by consent of both of them; provided, that in all cases of personal violence upon either by the other, the injured party, husband or wife, shall be allowed to testify against the other.'

And that that statute was made applicable to the proceeding on the preliminary hearing by virtue of section 1014 of the Revised Statutes, which provides that any offender against the laws of the United States may be arrested, imprisoned, or bailed, etc., 'agreeably to the usual mode of process against offenders in such state.'

It is argued that the meaning of this section is that, in all hearings on the arrest and commitment of offenders against the laws of the United States, the practice and rules of evidence of the state in which the hearing is had shall be followed. We do not so construe that section. It provides only, as we held in United States v. Dunbar, 83 F. 151, 27 C.C.A. 488, that the proceeding before the commissioner shall assimilate the proceeding for a similar purpose provided by the laws of the state. It should not be assumed that it was the intention of Congress, in adopting section 1014, to enact that the admissibility of evidence in proving an offense against the laws of the United States shall depend upon the laws of evidence of the state in which the examination is had, with the result that for the same act a defendant might be held to answer in one state and discharged in another, and that the witnesses on the preliminary examination might be different from those who were competent to testify on the trial. The words 'mode of process' are equivalent to mode of proceeding. Wayman v. Southard, 10 Wheat. 1, 27, 6 L.Ed. 253. The qualifications of witnesses have nothing to do with the 'mode of process.' It has never been held, so far as we are advised, that a United States commissioner must, on a preliminary examination, observe the laws of the state as to the qualifications of witnesses and rules of evidence. In United States v. Patterson, 150 U.S. 65, 14 Sup.Ct. 20, 37 L.Ed. 999, the court said:

'It was held, in the case of United States v. Ewing, 140 U.S. 142 (11 Sup.Ct. 743, 35 L.Ed. 388), that, in view of section 1014 of the Revised Statutes, the law of the state in which the services are rendered must be looked at, in order to determine what is necessary in the matter of procedure.'

The competency of witnesses in criminal trials in the courts of the United States is not governed by a statute of the state, but by the common law, except where Congress has made specific provisions on the subject. Logan v. United States, 144 U.S. 263, 303, 12 Sup.Ct. 617, 36 L.Ed. 429. There being no specific provision on the subject, the common law is applicable. At common law the husband and wife were each under total disability to testify for the other, but the disability did not extend to the testimony of one against the other. Such testimony of the one against the other was excluded, however, unless both the husband and wife waived the privilege and consented to its admission. Wigmore on Evidence, Sec. 2242; Benson v. Morgan, 50 Mich. 77, 14 N.W. 705. But the common law made an exception to the rule of privilege in cases where the husband or wife was called as a witness to testify as to personal wrong or injury sustained from the other. Wigmore, Sec. 2239.

We are of the opinion that the personal injury to a wife which permits the admission of her testimony against her husband, within the exception recognized at the common law, and expressed in the Oregon statute, is not confined to cases of personal violence, but may include cases involving a tort against the wife, or a serious moral wrong inflicted upon her, and that in a case of the prosecution of a man for bringing his wife from one state to another with intent that she shall practice prostitution, in violation of the White Slave Act, his act in so doing is such a personal injury to her as to entitle her to testify against him. It has been so held in United States v. Rispoli (D.C.) 189 F. 271, and in United States v. Gwynne (D.C.) 209 F. 993. The conclusion which we reach is that Esther Wood's testimony at the preliminary examination was admitted with her own consent and that of her husband, so that it was not incompetent, whether governed by the common law, or by the Oregon statute, and that it was also admissible, whether governed by the common law or the state statute, on the ground that it related to a personal injury inflicted upon the wife by her husband.

The foregoing considerations are applicable also to the contention that the court erred in instructing the jury that the fact that Esther Wood was the wife of Gronich would not excuse him from violation of the White Slave Traffic Act, and that no man has a right to transport his own wife from one state to another for the purpose of prostitution, so that the fact that she was his wife was wholly immaterial.

Error is assigned to the following instruction:

'Something has been said about the manner in which Miss Wood was treated before the commissioner. Now, I do not think that that is very material in this case. If she was sworn and testified as a witness in that case, and knowingly and willfully testified falsely, she committed perjury, and that is about all that is necessary to be said about that matter. It is one of the facts in the case, and you have a right to weigh it along with all the other testimony in the case; but however badly she may have been treated, or however wrongly she may have been treated, would be no justification or excuse on behalf of this defendant if, as a matter of fact, she committed perjury at his request or his instigation.'

This instruction was not inapplicable to the state of facts disclosed by the evidence. Esther Wood, when she first appeared before the commissioner, was not known to be the wife of Gronich. She at first refused to answer questions. Esther Wood, when she first appeared before the commissioner, and the district attorney, to compel her to answer. She declined to do so until she might have an opportunity to consult with the plaintiff in error, her attorney. After she had that consultation, and while the plaintiff in error was in attendance at the hearing,

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she freely and without coercion gave the false testimony which he advised her to give. No suggestion was made at any time that she had the right to remain silent by reason of the fact that she was the wife of Gronich.

We find no error.

The judgment is affirmed.