State v. Luper, 91 P. 444

State v. Luper

91 P. 444 | Or. | 1907

Opinion by

Mr. Chief Justice Bean.

1. There was no abuse of discretion in denying the motion for a continuance. The application therefor did not set out a single fact to entitle defendant to a postponement. Its manifest purpose was to secure a delay until the decree theretofore *607granted in the divorce suit could be set aside, and the relation of husband and wife between defendant and Mrs. Luper restored, thus disqualifying her from testifying against him in the criminal action without his consent. Certainly such a state of facts did not entitle him to a continuance as a matter of right. Whether the ends of justice would have been subserved thereby was a question for the trial court, and with its conclusion we must decline to interfere.

2. While the defendant was on the stand, testifying in his own behalf, his counsel offered to interrogate him concerning statements made to him by his wife during the marriage regarding her intention to desert him; but the court, on the objection of the state, refused to allow him to do so, for the reason that evidence of any communications between defendant and his former wife, during their marriage, was incompetent. Section 724 of the Civil Code (B. & C. Comp.), provides that a husband and wife cannot be examined, during the marriage or afterwards, as to any communications made by the one to the other. Whether this section includes all communications between husband and wife, or only such as are confidential, it is not necessary now to consider, because it does not apply to criminal prosecutions: State v. McGrath, 35 Or. 109 (57 Pac. 321). The Criminal Code is complete within itself as to the competency of the husband or wife to testify in criminal prosecution against the other, and contains no provision governing the proof of communications made by the one to the other. It simply provides that when a husband is the party accused the wife shall be a competent witness, and when the wife is the party accused the husband shall be a competent witness; but neither shall be compelled or allowed to testify, unless by the consent of both, except in cases of personal violence (B. & C. Comp. § 1401), leaving the question of the competency of their testimony either during or after the marriage to be determined by the common law.

3. It is a rule of law, founded upon public policy, the object of which is to secure domestic happiness and tranquillity, that *608“all confidential communications between husband and wife, and whatever comes to the knowledge of either by reason of the hallowed confidence which that relation inspires, cannot be after-wards divulged in testimony” (Greenleaf, Evidence, § 337), even after the marriage is dissolved by death or divorce. But the rule which renders incompetent proof of communications between husband and wife, like that which preserves inviolate communications between attorney and client, is subject to some exceptions dictated by natural justice, and among these is that whenever it becomes necessary to disclose such communications, in order to protect the personal rights or liberty of the party to whom they were made, he is relieved from the obligation of secrecy which the law otherwise imposes. Thus, when a disclosure of communications by a client to his attorney is necessary to protect the personal rights of the attorney, as Mr. Justice Selden says, “he must of necessity and in reason be exempted from the obligation of secrecy”: Rochester City Bank v. Suydam, 5 How. Prac. 254; Mitchell v. Bromgerger, 2 Nev. 345 (90 Am. Dee. 550). Also, in a trial of a husband for homicide, it is competent for defendant to testify that his wife told him, immediately before the shooting, that the deceased had threatened to kill him: Shepherd v. Commonwealth, 119 Ky. 931 (85 S. W. 191). And other similar cases will readily suggest themselves upon a moment’s thought.

Now in this case defendant was on trial for perjury in swearing that his' wife had deserted him. The truth of this oath, or that it was honestly made, may have depended largely, if not entirely, upon the declarations the wife made to him concerning her intention and characterizing her acts. It would be a hard and unjust rule to deny him the right to protect his personal liberty, and we think the law does not require us to so hold, by giving such declarations in evidence.

Judgment reversed, and new trial ordered. Reversed.