Maltzman, Marvin S.

English

University of Miami School of Law

University of Miami Law SchoolInstitutional RepositoryUniversity of Miami Law Review5-1-1961Criminal Law -- Conspiracy Between Husband andWifeMarvin S. MaltzmanFollow this and additional works at: http://repository.law.miami.edu/umlrThis Case Noted is brought to you for free and open access by Institutional Repository. It has been accepted for inclusion in University of Miami LawReview by an authorized administrator of Institutional Repository. For more information, please contact library@law.miami.edu.Recommended CitationMarvin S. Maltzman, Criminal Law -- Conspiracy Between Husband and Wife, 15 U. Miami L. Rev. 312 (1961)Available at: http://repository.law.miami.edu/umlr/vol15/iss3/9UNIVERSITY OF MIAMI LAW REVIEWare: (1) the testator must have expressed substantially the samebequest in a will executed immediately. next prior to his last will,z.e. in the next to the last will made by him, and (2) the next tothe last will must have been executed at least six months beforethe testator's death a.2Therefore, since the testatrix executed both her last will and the will"immediately next prior to such last will"24 within six months of death,the petitioner, who is a member of the class sought to be protected, maytake her intestate share at the expense of the charitable and scientificbeneficiaries.The Supreme Court of Florida was forced to reach this decision becausethe: statutory amendment was too narrow. If the purpose of the statuteis to protect certain heirs from hasty and improvident bequests to charityby a testator who is in apprehension of impending death, it would appearunreasonable that a testator who has displayed charitable inclinations ina series of wills should not have his testamentary intentions honored. There-fore, it is submitted that the Florida Legislature might amend -this statuteto permit the courts to look beyond the will "immediately next prior tosuch last will"25 in order to give effect to charitable bequests.HARRY M. ROSENCRIMINAL LAW-CONSPIRACY BETWEEN HUSBANDAND WIFEA husband and wife were indicted for conspiring to defraud the UnitedStates.' The federal district court dismissed the indictment on the groundthat husband and wife could not conspire within the meaning of Title 18U.S.C. Section 371.2 The United States appealed directly to the Si premeCourt. Held, reversed: 3 the common law fiction of unity of husband and23. In re Blankenship's Estate, supra note 20, at 468. (Emphasis not added.)24. FLA. STAT. § 731.19 (1959).25. FLA. STAT. § 731.19 (1959).1. 18 U.S.C. § 545 (1958): "Whoever knowingly and willfully, with intent todefraud the United States, smuggles, or clandestinely introduces into the United Statesany merchandise which should have been invoiced, or makes out or passes, or attemptsto pass, through the customhouse any false, forged, or fraudulent invoice, or otherdocument or paper...2. 18 U.S.C. § 371 (1958): "If two or more persons conspire either to commitany offense against the United States, or to defraud the United States . . . and oneor more of such persons do any act to effect the object of the conspiracy, each shallbe fined not more than $10,000 or imprisoned not more than five years, or both."3. The dissenting Justices were Mr. Chief Justice Warren, Mr. Justice Black andMr. Justice Whittaker.[VOL.. XVCASES NOTEDwife is not applicable to prosecutions for conspiracy against the United States.United States v. Dege, 364 U.S. 51 (1960).At the common law the crime of conspiracy could not be committedby less than two persons. 4 By application of the common law fiction ofunity of husband and wife,, it was held that spouses were incapable ofconspiring together.6 Prior to 1920,7 this rule was mechanically followed byall jurisdictions in the United States.8 Despite judicial criticism, 9 some courtsheld themselves bound by the unity fiction in cases of conspiracy untilsuch time as the fiction was abrogated by the legislature. 10 The fiction wasnot applied to a husband and wife who conspired with a third party, evenif the identity of the third party was unknown at the time of the trial,"or if the conspiracy occurred prior to a valid marriage between the parties.12Although this rule was criticized by the courts,' 3 it was not expresslyrepudiated until 192014 when the Supreme Court of Colorado, basing itsholding on the Married Women's Act, held that a husband and wife werecapable of conspiracy. 15 The common law fiction has been expressly4. "A conspiracy is . . . a combination of two or more persons, by concertedaction, to accomplish a criminal or unlawful purpose, or some purpose not in itselfcriminal or unlawful, by criminal or unlawful means .... ." Pettibone v. United States,148 U.S. 197, 203 (1893); CLARK & MARSHALL, CRIMES § 9.01 at 496 (6th ed. 1958).5. See cases collected in 41 C.J.S. Husband and Wife § 5 (1944).6. Gros v. United States, 138 F.2d 261 (9th Cir. 1943); United States v. Shaddix,43 F. Supp. 330 (S.D. Miss. 1942); State v. Clark, 14 Del. (9 Houst.) 536, 33 AtI.310 (1891); Worthy v. Birk, 244 Ill. App. 574 (1922); Merrill v. Marshall, 113 Ill.App. 447 (1904). See generally, HAWKINS, PLEAS OF THE CROWN 351 (6th ed. 1788); 1WHARTON, CRIMINAL LAW AND PROCEDURE § 88 (12th ed. 1957); WINFIELD, THEHISTORY OF CONSPIRACY § 26 (1921).7. Dalton v. People, 68 Colo. 44, 189 Pac. 37 (1920).8. Gros v. United States, 138 F.2d 261 (9th Cir. 1943); United States v. Shaddix,43 F. Supp. 330 (S.D. Miss. 1942); People v. Richards, 67 Cal. 412, 7 Pac. 828 (1885)(dictum); People v. Little, 41 Cal. App. 2d 797, 107 P.2d 634 (Dist. Ct. 1940);(dictum); People v. Eppstein, 108 Cal. App. 72, 290 Pac. 1054 (Dist. Ct. 1930)dictum); State v. Clark, 14 Del. (9 Houst.) 536, 33 Atl. 310 (1891); Worthy v. Birk,224 Ill. App. 574 (1922); Merrill v. Marshall, 113 I11. App. 447 (1904).9. Smith v. State, 48 Tex. Crim. 233, 89 S.W. 817 (1905). The court statedby way of dictum that the common law rule should be rejected, although there was noneed to apply the rule since a third party was involved in the conspiracy. Cf. Jonesv. Monson, 137 Wis. 478, 119 N.W. 179 (1909), where the plaintiff was allowedto recover damages for the injuries sustained as a result of a conspiracy betweenhusband and wife.•10. Dawson v. United States, 10 F.2d 106 (9th Cir.), cert. denied, 271 U.S. 687(1926); People v. Miller, 82 Cal. 107, 22 Pac. 934 (1889); State v. Struck, 44 N.J.Super. 274, 129 A.2d 910 (Essex County Ct. 1957).11. United States v. Anthony, 145 F. Supp. 323 (M.D. Pa. 1956); UnitedStates v. Shaddix, 43 F. Supp. 330 (S.D. Miss. 1942) (dictum); People v. MacMullen,134 Cal. App. 81, 24 P.2d 794 (Dist. Ct. 1933); State v. Clark, 14 Del. (9 Houst.)536, 33 Aft. 310 (1891) (dictum); People v. Estep, 346 Ill. App. 132, 104 N.E.2d563 (1952), cert. denied, 345 U.S. 970 (1953); Rex v. Locker, 5 Esp. 107, 170 Eng.Rep. 754 (1803).12. People v. Keller, 165 Cal. App. 2d 419, 332 P.2d 174 (Dist. Ct. App. 1958);People v. Little, 41 Cal. App. 2d 797, 107 P.2d 634 (Dist. Ct. App. 1940).13. See cases cited note 9 supra.14. Dalton v. People, 68 Colo. 44, 189 Pac. 37 (1920). There was no need torepudiate the rule in this case as the spouses had conspired with a third party.15. Id. at 47, 189 Pac. at 38.1961]UNIVERSITY OF MIAMI LAW REVIEWrejected by two other state courts.'0 The Fifth Circuit and the Districtof Columbia Circuit have overruled the common law fiction of unity withoutaid of statutory repeal, 17 while the Ninth Circuit has continued to apply it.18The Supreme Court, in the instant case, was unwilling to perpetuate thisfiction merely because it had been followed since the eighteenth century. 19The Court looked to the change in the social status of the "twentieth centurywife" 20 and realized that there was no longer any logic behind the fictionthat husband and wife were incapable of conspiracy.The trend, allowing the conviction of spouses for conspiring together,has been in accord with the law in other areas involving husband and wife.The tendency of modern legislation has been to abrogate the common lawtheoretical unity of husband and wife. All jurisdictions have enacted marriedwomen's statutes or emancipation acts .21It should be noted that a criminal conspiracy between husband andwife presents the same degree of danger to society as would any otherunlawful combination. To shield the conspiring spouses from convictionunder the common law rule might increase the possibility of such offensesbeing committed.The dissent argued that the 1948 conspiracy statute was merely anadoption of the original 1867 statute,22 and as husband and wife were incap-able of conspiring at the common law, in the absence of a specific repudia-tion by Congress, this well-established rule was included within the legislativepurpose of the 1867 statute. As the re-enacted statute must be interpretedin the light of the original statute,23 the dissent contended that the rule wasimproperly repudiated by the Court, and that such action properly lies withthe Congress.2 4The dissent further argued, that for the "solidarity and confidentialrelationship of marriage"2 5 to continue, there should be a preservation of16. People v. Martin, 4 I11. 2d 105, 122 N.E.2d 245 (1954); State v. Bayoukas,226 Iowa 1385, 286 N.W. 458 (1939) (dictum); Marko v. State, 144 Tex. Crim. 509,164 S.W.2d 690 (1942).17. Wright v. United States, 243 F.2d 569 (5th Cir.), cert. denied, 355 U.S. 831(1957); Kivette v. United States, 230 F.2d 749 (5th Cir. 1956), cert. denied, 355 U.S.935 (1958); Thompson v. United States, 227 F.2d 671 (5th Cir. 1955); Johnson v.United States, 157 F.2d 209 (D.C. Cir. 1946): "No reason remains why the law shouldnot recognize the obvious fact that the relation of husband and wife does not preventtwo persons from conspiring to commit an offense." Accord, Ex parte Estep, 129 F. Supp.557 (N.D. Tex. 1955).18. Gros v. United States, 138 F.2d 261 (9th Cir. 1943); Dawson v. UnitedStates, 10 F.2d 106. (9th Cir.), cert. denied, 271 U.S. 687 (1926). Accord, UnitedStates v. Shaddix, 43 F. Supp. 330 (S.D. Miss. 1942).19. United States v. Dege, 80 Sup. Ct. 1589 (1960).20. Id. at 1591.21. These statutes are collected in 3 VERNIER, AMERICAN FAMILY LAWS §§ 167,179 (1935).22. United States v. Dege, 80 Sup. Ct. 1589, 1592 (1960) (dissenting opinion, Mr.Chief Justice Warren).23. Ibid.24. Id. at 1593.25. Id. at 1594.[VOL. XVCASES NOTEDthe unit. However, such confidential relationship between the spouses doesnot offer sufficient excuse to exempt them from conviction if they are guiltyof the crime.2 6The Dege case resolves the conflict which had existed between thecircuits. It is submitted that the Court correctly took this opportunity tooverrule a doctrine "that has parrot-like been repeated '27 since the eighteenthcentury. Whether the state courts will follow this rule remains to be seen.MARVIN S. MALTZMANFEDERAL PROCEDURE-JURISDICTION CONFERREDBY STIPULATIONThe plaintiff, a citizen of Pennsylvania, brought a negligence actionagainst the defendant corporation, a citizen of New York, in a federaldistrict court in Pennsylvania. The defendant, by answer, challenged diversityjurisdiction because it was also incorporated under the laws of Pennsylvania.Subsequently, the parties stipulated to the jurisdiction of the court. Aftertwenty-three months, during which time extensive discovery and pre-trialprocedures were utilized and the statute of limitations had expired, thedefendant moved to dismiss for lack of jurisdiction. The motion was grantedand the plaintiff appealed. Held, reversed: the trial court abused its discretionby re-examining jurisdictional facts previously stipulated to by the parties.Di Frischia v. New York Cent. R.R., 279 F.2d 141 (3d Cir. 1960).The great weight of authority holds that jurisdiction of a federal courtmay not be conferred by agreement, consent or collusion of the parties.1Diversity jurisdiction is a fact which must exist at the time the jurisdictionof a federal court is invoked.2 If at any time jurisdiction is challenged, thecourt is under a duty to proceed no further until the jurisdictional question26. See Williams, The Legal Unity of Husband and Wife, 10 MODERN L. REV.16 (1947).27. United States v. Dege, 80 Sup. Ct. 1589, 1591 (1960).1. United States v. Griffin, 303 U.S. 226 (1938); Mitchell v. Maurer, 293 U.S. 237(1934); Ayers v. Watson, 113 U.S. 594 (1885); People's Bank v. Calhoun, 102 U.S.256 (1880); Orth v. Transit Inv. Corp., 132 F.2d 938 (3d Cir. 1942); Page v. Wright,116 F.2d 449 (7th Cir. 1940), cert. denied, 312 U.S. 710 (1941); 1 MOORE, FEDERALPRACTICE § 0.60, at 608 (2d ed. 1960). "Diverse State citizenship of the parties, or someother jurisdictional fact prescribed by the second section, is absolutely essential, and cannotbe waived, and the want of it will be error at any stage of the cause ..... Ayersv. Watson, supra at 598.2. McNutt v. General Motors Acceptance Corp., 298 U.S. 178 (1936); BirminghamPost Co. v. Brown, 217 F.2d 127 (5th Cir. 1954); Town of Lantana v. Hopper,103 F.2d 118 (5th Cir. 1939).1961)

Criminal Law -- Conspiracy Between Husband and Wife

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Criminal Law -- Conspiracy Between Husband and Wife

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