Barrett v. Fish

• Decision Date: 31 August 1899
• Citation: 72 Vt. 18,47 A. 174
• Parties: BARRETT v. FISH.
• Court: Vermont Supreme Court

47 A. 174

72 Vt. 18

BARRETT

v. FISH.

Supreme Court of Vermont. Addison.

Aug. 31, 1899.

Appeal in chancery, Addison county; Thompson, Chancellor.

Bill by Vivian Barrett against F. L. Fish to enjoin the publication by production in court of certain letters written by her and in defendant's possession. From a decree pro forma in accordance with the prayer of the bill, defendant appeals. Reversed.

Argued before TAFT, C. J., and TYLER, MUNSON, THOMPSON, and WATSON, JJ.

F. L. Fish, pro se. Button & Button, H. a Shurtleff, and Stephen a Shurtleff, for appellee.

THOMPSON, J. From the agreed statement of facts, the allegations of the bill of the oratrix, and the admissions in the defendant's answer, it appears that the papers in controversy are unsigned letters written by the oratrix to one Poland and by him to her chat they were in her possession until shortly before August 21, 1897, when she committed them to the custody of one Hyde, with directions to burn them; that while they were in his possession he delivered them to F. A. Howland, August 21, 1897, and subsequently, and before the commencement of this suit, Howland delivered them to the defendant, who has ever since retained possession of them, against the will of the oratrix. The defendant admits that he intends to publish the letters by using them as evidence in the prosecution of a joint information against the oratrix and Poland by which they are charged with committing adultery with each other, which criminal proceeding is now pending in Addison county court; that the contents of the letters tend to show that there has been undue familiarity and criminal intimacy between the oratrix and Poland; and that she is privileged from producing the letters on trial unless she should be improved as a witness in her own behalf.

Although counsel for the oratrix have argued the case as if the question of an unlawful search and seizure of her private papers were involved, it is sufficient to say that that question is not involved, as the letters were voluntarily delivered to Howland by the agent of the oratrix. That such delivery was a flagrant breach of trust by Hyde cannot make the receiving of the letters by Howland an unlawful search and seizure.

It is not claimed by the defendant that the letters themselves were implements by which the alleged crime was committed. Hence it is unnecessary to discuss or decide in respect to the right of prosecuting officers to seize or to retain such instruments, when they come into their possession, for use as evidence on the trial of the person charged with the crime in the commission of which such instruments were used.

The fact that Howland was the state's attorney of Washington county, and that the defendant was state's attorney of Addison county, at the time the letters were taken by Howland and by him delivered to the defendant, gave neither of them any right to take and hold the letters against the will of the oratrix. Nor does the fact that the defendant is still such state's attorney in any way affect the rights of the parties to this suit. He holds them the same as any other person would hold them under like circumstances. As to the defendant, the oratrix is the owner of the letters. It is clear that a court of law will take no notice, on trial of a respondent, how letters or other papers offered in evidence were obtained, for the purpose of determining their admissibility in evidence. State v. Mathers, 64 Vt. 101, 23 Atl. 590, 15 L. R, A. 268; Jordan v. Lewis, 2 Strange, 1122; Stockfleth v. De Tastet, 4 Camp. 10; Gindrat v. People, 138 Ill. 103, 27 N. E, 1085; State v. Atkinson, 40 S. C. 363, 18 S. E. 1021; State v. Griswold, 67 Conn. 290, 34 Atl. 1046, 33 L. R. A. 227; Williams v. State, 100 Ga. 511, 28 S. E. 624, 39 L. R. A. 269; Legatt v. Tollervey, 14 East, 302; 1 Greenl. Ev. § 254a. Consequently the oratrix is remediless at law in the premises, if she is entitled of right not to have the letters published by being read in evidence...