Dunlap v. Hearn

Harris, J.,

delivered the opinion of the court.

The defendant in error commenced his action of replevin in the court below, to recover of the defendant below a negro girl.

The plea of not guilty was filed, and the cause submitted to a jury on the testimony, who returned a verdict for defendant in error. A motion for a new trial was made, and refused, and exceptions filed, and the cause brought to this court on writ of error. Many points as to the admissibility of testimony, were reserved; all of which, together with the charges of the court given for defendant in error, as well as the refusal of the court to grant a new trial, are assigned for error.

We will proceed to consider these assignments in their order.

*474 1. It is insisted that the court erred in permitting the wife to testify for the defendant in error, and it is urged, in support of this position, that it was not alone the interest of the wife, which, prior to our late statute, disqualified her from being a witness for or against her husband; but it was a disability imposed upon grounds of public policy, and arising out of the sanctity of this relation, and the unity and identity of person, which the law for wise purposes has established between them; and it is further urged, that to permit the wife to be made a witness for or against her husband, is to destroy the secret confidence between them, and expose to, public view the advisory counsels of domestic life.

Prior to the passage of the Act of 1857, Code, 510, arts. 190, 193, the husband and wife were incompetent to testify for or against each other, not only on account of the identity of their legal rights and interests, but more especially on account of the privileged sanctity with which the law regards the confidential intercourse of married life. “ Communications between husband and wife (says Mr. Greenleaf, vol. 1, p. 333, § 254), belong also to the class of privileged communications, and are therefore protected independently of the ground of interest and identity, which precludes the parties from testifying for or against each other. The happiness of the married state requires that there should be the most unlimited confidence between husband and wife; and this confidence the law secures, by providing that it shall be kept forever inviolable; that nothing shall be extracted from the bosom of the wife, which was confided there by the husband.” 1 Greenleaf Ev. 450, § 334.

“ The great object of the rule is to secure domestic happiness, by placing the protecting seal of the law upon all confidential communications between husband and wife; and whatever has come to the knowledge of either by means of the hallowed confidence which that relation inspires, cannot be afterwards divulged in testimony, even though the other party be no longer living.” 1 Greenleaf Ev. 452, § 337, and numerous cases cited in notes (8th edit.).

This rule, in its spirit and extent, is analogous to that which excludes confidential communications made by a client to his attorney. Id. 453, § 338.

*475 It is not, therefore, “by reason of interest” in the suit, or “in the result thereof” alone, that the wife is excluded as a witness, for or against her husband, at common law; and hence the statute in the new code, does not remove her disability, growing out of the privileged sanctity of the marital relation.

This is made more manifest by the last article of sec. 17, Code, 510, which makes special provision, that “ in criminal cases, husband and wife shall be competent witnesses for each other.”

If they had been x’endered generally competent by the previous article, 190, thi3 last provision would have been unnecessary. We think, therefore, this testimony should have been excluded. This disposes of the 1st, 2d, 3d, 4th, 5th, and 6th assignments of error.

The 7th assignment of error relates to the admission of the testimony of Miss Hearn, to prove that the wife of plaintiff in error said, “Mother had never given her anything.”

This evidence did not tend to establish the issue. It did not tend to show that the/afAerhad never given her the girl in dispute, and was therefore wholly irrelevant.

The 8th assignment presents the question, whether the statements of the same witness, that “my sister.never owned the slave in controversy,” and “mother exercised great control over everything,” were competent evidence to go to the jury?

The first statement amounts only to the expression of a legal opinion, or the statement of a legal conclusion, instead of a statement of facts, upon which the court and jury might pronounce. And the latter statement, as to the influence of her mother in the family, could have no relevancy to the issue.

This evidence should, therefore, have been excluded. .

The 9th assignment presents the question, whether the plaintiff’s statement, that “ the negro in controversy was his own property,” was competent ? This was but the statement of the conclusion of law, at which the mind of the witness had arrived' from his knowledge of the facts. It is the province of the jury, after hearing the facts, under the instruction of the court, to determine this question, and not of the witness to determine it for them, or to express his opinion. He must state facts and circumstances, and leave the jury to draw conclusions and inferences from those facts.

*476 This evidence should have been excluded, therefore.

The 10th assignment of error is, that the court erred in giving the first, second, third, fourth, and fifth charges for plaintiff below.

The first charge, with the qualification contained in a subsequent one, that three years’ adverse possession, even in case of a loan, would bar the plaintiff’s recovery, we think was not objectionable, but correctly stated the law.

The second charge, that “ the direct and positive knowledge of one witness, is of more value and force, than the doubtful recollections of certain transactions, of ten witnesses,” is liable to several objections. It is, first, abstract; as no question as to the positive knowledge of anj fact was involved in the cause, but the question was, whether the circumstances in proof, established a loan or gift, or in law vested title to the negro in dispute in the defendant below.

2. The charge assumes that the swearing of one witness (whether credible or not) directly and positively to the knowledge of any fact, or to his knowledge of the law upon a given state of facts existing in his own mind, is of greater value than the doubtful recollections of ten witnesses, thus giving importance to evidence in a ratio directly proportioned to the boldness or recklessness of the witness, without regard to his credibility.

3. The charge assumes, that the recollections of some witnesses are doubtful, as to certain transactions, and that the knowledge of others is direct and positive, and assumes to instruct the jury as to what weight they should give to the one side, or deny to the other, as a rule of law; when these are matters for the consideration of the jury, and incapable in their nature, of being reduced to a definite legal rule for their guidance, by instructions from the court.

And lastly, the instruction, if it has any application to the testimony in the cause, was calculated to mislead the jury, by instructing them to attach great value to the testimony of plaintiff below and his daughter, swearing to plaintiff’s title, which testimony we have already shown was improperly admitted.

The third charge given for plaintiff below, that “ if the plaintiff’s evidence that the girl was a mere loan, is not successfully contradicted, the jury must find for the plaintiff,” was also erroneous; because it- assumes that the'' plaintiff’s evidence established, when taken by itself, a loan, or that plaintiff had proved a loan.

*477 The fourth charge given for plaintiff, taken in connection with the fourth charge given for the defendant below, is not liable to objection.

The fifth charge is abstract, as the record contains no evidence tending to show, that the wife was the agent of the husband in this case.

In the case of Lockhart v. Luker, 36 Miss. 68 , we were all at that time of opinion, that our late act rendered the wife competent. Further examination and reflection, however, have satisfied us that that opinion is erroneous. We, therefore, overrule our opinion in that case.

Let the judgment be reversed, cause remanded, and a venire de novo awarded.