Blau v. United States/Dissent Minton

Mr. Justice MINTON, with whom Mr. Justice JACKSON joins, dissenting.

If a communication between husband and wife is made under circumstances obviously not intended to be confidential, it is not privileged. Wolfle v. United States, 291 U.S. 7, 14, 54 S.Ct. 279, 280, 78 L.Ed. 617.

Where the privilege suppresses relevant testimony, as it did here, it should 'be allowed only when it is plain that marital confidence can not otherwise reasonably be preserved.' 291 U.S. at page 17, 54 S.Ct. at page 281.

Unless the wife is in concealment, which does not appear to be the case here, the disclosure of her whereabouts to the husband is obviously not intended to be confidential and therefore is not privileged. Not every communication between husband and wife is blessed with the privilege. The general rule of evidence is competency. Incompetency is the exception, and to bring one within the exception, one must come within the reason for the exception. The reason here is protection of marital confidence, not merely of communication between spouses. It seems to me clear that all that is shown here is communication. The circumstances of confidence are absent; what all may know is certainly not confidential.

For refusal to divulge his wife's whereabouts, petitioner was in contempt. Since the sentence he received was such as he might have received for that single act of contempt, his conviction is valid. Cf. Pinkerton v. United States, 328 U.S. 640, 641, n. 1, 66 S.Ct. 1180, 1181, 90 L.Ed. 1489; Hirabayashi v. United States, 320 U.S. 81, 85, 63 S.Ct. 1375, 1378, 87 L.Ed. 1774. If petitioner conceived his sentence to be illegal, he would not be without remedy, for he might seek a reduction thereof on remand of this case under Rule 35 of the Federal Rules of Criminal Procedure, 18 U.S.C.A. I intimate nothing as to that issue.

I would affirm the conviction.