Appeal from the Appellate Court for the Fourth District; heard
in that court on appeal from the Circuit Court of Sangamon
County, the Hon. Howard Lee White, Judge, presiding.
MR. JUSTICE MORAN DELIVERED THE OPINION OF THE COURT:
Rehearing denied November 23, 1977.
In a jury trial in Sangamon County circuit court, the defendant was convicted of murdering his paramour, Gwen Ellen Woods, in the early hours of October 30, 1972. The appellate court (39 Ill. App.3d 661) reversed the conviction and remanded the case for a new trial because it deemed privileged a marital conversation testified to at trial (Ill. Rev. Stat. 1971, ch. 38, par. 155-1).
Sometime after midnight on October 30, the defendant and the victim were seen together at a tavern. They were later seen quarreling by the side of a road. A police officer stopped to talk to them, told the defendant to take Gwen home, and, in his car, followed the couple for a short period of time. Still later, defendant arrived at the trailer of his estranged wife, Ann Simpson. (Their divorce was in process.) His hair was messed and his knuckles abraded; he had a deep, bloody gash over the bridge of his nose, blood stains on the elbows of his shirt, and briars and thick mud on his pants and boots. He seemed very disturbed. He was carrying a woman's purse, which he emptied onto the bed. A necklace fell out. His wife recognized the purse and necklace as belonging to the decedent. The defendant put on a fresh pair of pants identical to those he had been wearing. He gave Ann the keys to his car. She retrieved a can of gasoline from the vehicle, saturated the muddy pants with the gasoline, put them in the incinerator and set them on fire. The defendant added to the fire a bundle, the size of a pillow, wrapped in the vest he had been wearing. He repeatedly stoked the fire and, as articles fell out, put them back in.
The victim's body was subsequently found beneath a bridge a short distance from her abandoned car. The cause of her death was a gunshot wound to the head. (A more complete statement of the facts may be found in the appellate court's opinion.)
During the case in chief, Assistant State's Attorney Kasten stated that he and two deputy sheriffs interviewed defendant at the jail. He testified:
"We had been questioning the defendant, and Mrs. Simpson came into the room and sat down in a chair. I was sitting on the desk and the others were sitting on chairs, and either Mr. Price or Mr. Brown, I don't remember which one, said, `Now, Ann, tell us what he told you;' and she said that he came to the trailer on the morning in question and said that he had shot Gwen and the defendant then spoke up and said, `Yes, but I told you later I was lying.'" (Emphasis added.)
Clearly, the inference to be drawn from defendant's word, "Yes," in the context of the words that follow, is "Yes, I did previously tell you I shot Gwen."
Prior to trial, the court had ruled that Mrs. Simpson herself could not testify to the conversation in the trailer but Kasten could testify as to defendant's admission, made in Kasten's presence, that he (defendant) had earlier told his wife he had shot Gwen. No attempt was made at trial to have Ann Simpson testify regarding the conversation in the trailer, and the above statement by Kasten was the extent of the inquiry in that regard.
Section 6 of the Criminal Code of 1874 (Ill. Rev. Stat. 1971, ch. 38, par. 155-1) provides in pertinent part:
"In all criminal cases, husband and wife may testify for or against each other: provided, that neither may testify as to any communication or admission made by either of them to the other or as to any conversation between them during coverture * * *."
The applicable statutory provision has been interpreted by this court to allow a spouse's testimony except as to confidential communications between husband and wife. Communications in the presence and hearing of a third party are generally not considered to be confidential communications within that privilege. (People v. Palumbo (1955), 5 Ill.2d 409, 414-15.) It is likewise apparent that one in whose presence a communication between spouses is made may testify to that conversation, even though the witness overheard the conversation by eavesdropping. Similarly, one may testify who learns the contents of a written communication from one spouse to another by interception, or through loss or misdelivery by the custodian. McCormick, Evidence sec. 82, at 167 (2d ed. 1972).
The appellate court found it was reversible error for the trial court to have permitted Kasten to testify to the jailhouse confrontation by Mrs. Simpson and to defendant's response. The court relied on an exception to the above rule, concluding, "The privilege is not destroyed if the contents of the communication be learned by others as a result of the betrayal or connivance of the spouse to whom the communication was made. (See McCormick on Evidence 167, 168 (2d ed. 1972) and cases there cited.)" (39 Ill. App.3d 661, 670.) We believe that the appellate court's reliance on the betrayal exception is misplaced. That exception, as set forth in McCormick, provides:
"[T]he privilege will not be lost if the eavesdropping, or the delivery or disclosure of the letter be due to the betrayal or connivance of the spouse to whom the message is directed." (Emphasis added.) (Footnotes ...