Learned Hand Rules on Glittering Patent Swindler (1949)
Defendant was convicted taking money “feloniously by fraud and with intent to steal and purloin” (defrauding widows and orphans). The decision reads like a drama.
He had made Mary Ashe’s acquaintance on a train and by his glitter impressed her with his importance; he followed her to Houston, and pretending that he was a man of great wealth and position, he inveigled her into marrying him.
Before Ms. Ashe, the Defendant had glittered, inveigled, married and fleeced two other women. Their testimony was allowed, over the Defendant’s objections, on the issue of intent.
The braggadocio which he fed them was in large measure identical with that by which he hoodwinked Mary Ashe.
Defendant next argues that there could be no fraud, because nothing he said was proved false:
He appears to suppose that the prosecution failed on this issue, because it did not show in detail that he was not a man of ample means, that he did not own a racing stable with its proper colors, and that he had no trust funds, “tied up” by income tax troubles, or that he needed money only for temporary pecuniary relief from his embarrassments. That was not necessary, for the record discloses the trail of a patent swindler who three times played upon the credulity of single women, fleeced them of all they had, and abandoned them.
Finally, Defendant argues Spousal Privilege: spouse cannot testify against spouse. Specifically, the trial judge improperly allowed the prosecution to present a letter the Defendant wrote to his first wife.
after he had shipped her off to live in Alaska, and had left her substantially without money; he had gone through the form of marrying two other women meanwhile, and he was still living with the second of these, preparing to fleece her, as he had fleeced her predecessors. Surely nothing was better calculated to arouse the detestation of the jury than the letter, with its protestations of continued love and its assurances that he was only awaiting the opportunity to be reunited with her.
Should this letter be protected by the spousal privilege? Hand says yes. After heaping the imprecations, he overturns the conviction.
Although it is unusual for spousal privilege issues to arise unless the spouses are estranged, not all estrangements are final, and nothing could more dispose the privileged spouse to treasure enmity and to repulse any overtures of reconciliation than the memory of what will ordinarily rankle as treachery.