94 Ky. 511 | Ky. Ct. App. | 1893
DELIVERED THE OPINION OP THE COURT.
The evidence in this case of witnesses present shows that about, or soon after, night-fáll, appellant went through the back door into the store-house, of deceased, situated in a village where they both resided, ■and, without other warning than simply pronouncing the given name of deceased, commenced to fire his pistol at and killed him, so that, although deceased fired also very soon after appellant’s first shot, and both continued to fire until as many as seven or more shots were exchanged, there is no ground whatever upon which to base the excuse of self-defense. The jury, however, found a verdict of manslaughter only, fixing punishment at confinement in the penitentiary sixteen years.
We perceive no error in instructions to the jury, and the single inquiry left is, whether the court erred in permitting read in evidence a letter which appel
In addition to the information given to appellant by his m'other, the correctness of which she swore to on the trial, other witnesses testified to conduct on various occasions of deceased and appellant’s wife inconsistent with their innocence, and from which the jury was authorized to infer they had been criminally intimate.
The rule excluding husband and wife testifying for or against each other in a criminal prosecution, except in case of personal injury by one to the other, is, as stated in G-reenleaf on Evidence, vol. 1, section 834, founded partly ‘on the identity of their legal
In Elswick v. Commonwealth, 13 Bush, 155, this court, citing as authority Greenleaf on Evidence and Philips on Evidence, uses this language: “Information coming to a husband or wife in consequence or by reason of the existence of the marriage relation is to be treated as confidential, and the confidence which the law creates while the parties remain in the most intimate of all relations can not be broken even after that relation has been dissolved.”
In McGuire v. Maloney, 1 B. M., 224, it was to the same effect held that policy of the law so far protects that privacy and confidence essential to the marriage relation and that necessarily spring from it, as not only not to allow, but prevent, even after termination of the coverture, any disclosure by the wife in a court of justice, which implies a violation of the confidence which was reposed in her as a wife.
The evidence in this case shows the letter in question was procured from appellant’s wife by a brother of the deceased, and thus came into possession of the Commonwealth’s attorney. But it seems to us, whether given up by her voluntarily or obtained against her will, it was a disclosure of what had
The case of Selden v. State, 74 Wisconsin, 271, was a prosecution of a person for perjury, who, in a proceeding against his wife for divorce, made affidavit he did not know her place of residence;. and the question on the trial was, whether letters written by him to her pending proceeding for divorce, showing he did know her place of residence, and which she had placed in possession of her attorney, were ■competent evidence against him in the criminal trial. Applying the rule mentioned, it was there held that the letters being confidential communications, not even the address on the envelopes could be used as evidence against the husband; and in support of the ruling in that case, numerous decisions of English 'and American courts are cited.
In our opinion admission as evidence in this case of the letter written by appellant to his wife was an error prejudicial to his substantial rights, and the judgment is reversed for a new trial consistent with this opinion.