Selden v. State

• Decision Date: 05 April 1889
• Parties: SELDEN v. STATE.
• Court: Wisconsin Supreme Court

74 Wis. 271

42 N.W. 218

SELDEN

v.STATE.

Supreme Court of Wisconsin.

April 5, 1889.

Error to circuit court, Fond du Lac county.

Maurice McKenna, for plaintiff in error.

C. E. Estabrook, Atty. Gen., and L. K. Luse, Asst. Atty. Gen., for defendant in error.

ORTON, J.

The facts necessary to an understanding of the errors assigned are substantially as follows: On the 25th day of July, 1887, there was an action pending in the circuit court of Fond du Lac county in which the plaintiff in error was plaintiff, and one Emma S. Selden, his wife, was defendant, for a divorce on the ground of adultery. The information charges that the plaintiff in error committed the crime of perjury by swearing falsely in a certain affidavit made by him before one James T. Green, Esq., a notary public of said county, in order to procure an order of publication of the summons in said action, and as a witness on the trial of said action, that he, said plaintiff in error, had been a resident of the state of Wisconsin for more than one year immediately preceding the commencement of said action, on said 25th day of July, 1887. That, after due diligence and search, he is unable to find the whereabouts of the defendant, Emma S. Selden, and is unable, after due diligence, to make service of the summons in said action upon said defendant, and is unable, after due diligence and search, to ascertain the post-office address of said defendant; and that when asked, as a witness on the trial of said action, “How long have you resided in the state of Wisconsin?” he falsely swore, “It is nearly two years;” and when asked whether he had seen the said Emma S. Selden since the 16th or 17th day of March, 1886, he falsely swore “that he had not;” and, when asked whether he knew the whereabouts of the said Emma, he falsely swore “that he had not been able to find out where she was.” The plaintiff in error was found guilty of the perjury so charged, December 29, 1888, and upon the verdict he was sentenced to the state-prison for the term of two years. A motion was made to set aside the verdict, and for a new trial, and also a motion in arrest, which were overruled. On the trial George P. Knowles, Esq., an attorney at law, was introduced as a witness for the state, and testified, substantially, that he was employed by Emma S. Selden, the defendant in said action for divorce, to get the judgment of divorce in said action set aside, so as to allow her to defend the same, and that while he was so employed the said Emma S. Selden placed in his hands certain letters, numbered from 1 to 65, which she received from the plaintiff in error while they were still husband and wife, and that in his opinion the signature to the same was in the handwriting of the plaintiff in error. These letters appear to have been written by the plaintiff in error to his said wife, Emma, and directed to her under dates ranging from January, 1886, to June, 1887, at the place where she then resided, in the state of Michigan, with their envelopes of the usual address, and mailed at various places. He was asked to produce said letters. This was objected to by the counsel of the plaintiff in error, and the objection was overruled. The letters were then produced, and the district attorney offered in evidence the date and place from which the letters appear to have been written, the address to his wife, and the signature of the plaintiff in error, together with the envelope and the post-marks and address thereon, and did not otherwise offer the contents of said letters. This was also objected to by the counsel of the plaintiff in error, and the objection was overruled. These parts of the said letters and the envelopes were admitted to show that the plaintiff in error knew the residence of the said Emma S. Selden at the time he so swore, and was able to find the whereabouts of the said Emma, and that he was able to make service of the summons in said action upon her, and that he could have ascertained after due diligence and search the post-office address of said Emma, and that he was able to find out where she was at that time, and to show also his residence for the one year previous to said suit. For that purpose these letters, to the extent in which they were offered in evidence, were most clearly material, if they were competent and not privileged.

It is contended by the learned counsel of the plaintiff in error that such evidence was incompetent and inadmissible, for the reasons (1) that they were disclosures of confidential communications between husband and wife; and (2) that the production of the same by Knowles, the attorney of the defendant in that action, was also unlawful, as betraying the privileged communications and confidences between himself and her, as attorney and client.

We think that both of these positions were well taken, and that the circuit court erred in allowing the said Knowles to produce them, and in allowing the letters, to the extent offered, to be used as evidence or examined by the jury. So far as Knowles, the attorney of the defendant, Emma, was concerned, the production by him of the letters as genuine was a double violation of this protected confidence,-- First, of that reposed in him by his client, Emma S. Selden, and, secondly, of that between herself and her husband,--without her consent. If these letters were confidential, as between herself and her husband, they were none the less so in the hands of her attorney, Knowles, and, if she could not disclose them, of course he could not. But, besides this, he was betraying her confidences also, which was a double violation of the rule. She had demanded a return of these letters before he so disclosed and produced them. It is surprising that when she was unwilling herself to disclose or produce these letters of her husband, and was unwilling that her attorney, Knowles, should do so, Knowles should have been allowed to authenticate and produce them, and that the district attorney should have been allowed to introduce them in evidence, to the extent they were offered, to convict...