Commonwealth v. Fisher
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Opinion of the Court
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Opinion by Mr. Justice Elkin,
It has been said in several of our cases that courts will not be astute to sustain technical assignments of error in homicide cases where from a consideration of the whole record it appears no substantial injustice was done defendant, and that a fair trial on the merits has been accorded him. This must not be understood to mean, however, that courts are at liberty to disregard established rules of procedure, or settled rules of evidence, or the constitutional and statutory rights of parties, in the trial of such cases. It may be, under existing conditions, *543 and in view of our present state of society, there should be some relaxation of the old rigid rules of the common law, applicable to the trial of such cases, which grew out of an order of things at a time when the law-making bodies made petty offenses felonies and the common everyday practices of the people misdemeanors. Indeed, we are inclined to think there should be less insistence on technicalities and more stress put upon a course of procedure intended to develop the merits. In olden times heavy burdens were placed on the people, who required all the safeguards the courts could give in the trial of criminal cases, in order that some protection should be afforded those charged with crime. Conditions have changed, the number of felonies has been reduced to the minimum, the burden in a general sense has shifted and now rests very heavily on the commonwealth, which is still practically bound by old rules intended for other purposes and growing out of different conditions. Our criminal classes at the present time are very leniently and humanely dealt with, and the wisdom of safe-guarding their trials with all the refinements and technicalities of the common-law procedure may well be questioned. It is well to remember that he who takes the life of another with intent to do so, has offended against the laws of God and man, and a proper regard for the rights of society requires that conviction and punishment should surely follow. It is not the purpose of the law to make it easy for a person guilty of a brutal ■ murder to escape the penalty of his crime, but, on the other hand, a person so charged must be convicted, if at all, according to the law of the land.
1908.] Opinion of the Court.
The fourth assignment complains that the learned trial judge erred in overruling the objection and admitting in evidence two letters written by fellow prisoners at the dictation and by the request of defendant to his wife. The admission of the letters was objected to on the ground of being confidential and privileged communications between husband and wife. It is argued that this in effect was the giving of testimony by the wife against the husband, which in our state is forbidden by statute. We have concluded that this assignment must be sustained. The letters were produced at the trial by the district attorney, representing the commonwealth, and were inclosed in envelopes postmarked at Sunbury, where mailed, *544 and at Shamokin, the place of delivery. These facts clearly show that the letters were placed in due course of transmission in the mails, and the presumption arises under the rule of our own cases that letters so mailed were delivered to the party addressed. It is true the evidence does not show how the district attorney got possession of the letters, but the wife having received them, the reasonable presumption is that she gave them to the prosecuting officer, which, in point of fact she did, as is shown by facts subsequently developed. For the purposes of the present case it is not necessary to consider or determine whether the letters were such confidential and privileged communications as not to be admissible in evidence at all under any circumstances, but we do hold that they could not be produced by the wife and offered in evidence as coming from her because this in effect was permitting the wife to testify against her husband as to confidential communications made by one to the other, which cannot be done under our statute. We see no reason why the declarations contained in the letters, if they were made to other parties, competent to testify, should not be proven by them. Because these letters were improperly admitted in evidence, a statutory right vouchsafed to defendant was disregarded, and the fourth assignment of error must be sustained.
Judgment reversed and a venire facias de novo awarded.
Dissent
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Mr. Chief Justice Mitchell,
dissenting :
This judgment is being reversed upon two presumptions, one piled on top of the other without any evidence to support either. What the statute prohibits is that “ neither husband nor wife shall be competent or permitted to testify against each other .... nor shall either husband or wife be competent or permitted to testify to confidential communications made by one to another.” There is not a scintilla of evidence that either branch of the statute was violated in this case. The wife did not testify at all. Certain letters written by other persons in the name of the husband and addressed to the wife were offered and admitted in evidence. Whether letters dictated by a husband and written by other persons can be called confidential communications to his wife is at least an open and doubtful question. But waiving that there is no evidence that the letters ever reached the wife. It was *545 not shown at the trial that they did reach her or even that they were mailed to her. It is true that subsequent to the trial the envelopes in which the letters were alleged to have been inclosed, were produced and appeared to have been regularly stamped and mailed. If this fact had appeared at the trial, which it did not, there would under the cases have been a presumption that they reached the wife. But the presumption would have stopped there. When the letters appeared at the trial in the hands of the commonwealth there was no explanation asked of the district attorney nor volunteered by him as to how he got them. The conclusion is jumped at by the further presumption that the wife gave them to the commonwealth, and that.in so doing she was testifying to confidential communications. There is no evidence nor any presumption, either of fact or of law, to support such a conclusion. She might just as probably have lost them by carelessness, or by the treachery of the fellow prisoners whom the defendant trusted with them in the first place, as they testified on the stand. It is very old and very sound law that a presumption founded on a presumption is not valid. I see no good reason for making a different rule in favor of a convicted murderer. I would affirm the judgment.
Mr. Justice Potter joins in this dissent.
How later courts describe this case
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(holding letters from defendant husband to wife could not “be produced by the wife and offered into evidence as coming from her,” as violative of marital privilege)
Cited by 9 cases
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