State v. Hial Mathers

• Decision Date: 01 October 1891
• Citation: 23 A. 590,64 Vt. 101
• Parties: STATE v. HIAL MATHERS
• Court: Vermont Supreme Court

23 A. 590

64 Vt. 101

STATE v. HIAL MATHERS

Supreme Court of Vermont

October 1, 1891

GENERAL TERM, OCTOBER, 1891

Indictment for an assault with intent to commit rape. Trial by jury at the December term, 1890, Bennington county, Taft J., presiding. Verdict, guilty. The respondent excepted. The case appears in the opinion.

Exceptions not sustained and judgment on verdict.

W B. Sheldon, for the respondent.

OPINION

ROWELL

The prisoner, being in jail on a charge of assault and battery with intent to commit rape, wrote a criminatory letter to his wife, intended for her alone, and gave it unsealed to one of his daughters to hand to her; but before delivery it was taken from that daughter's pocket by another daughter, and produced at the trial by the prosecution and offered in evidence. The prisoner objected to its admission, for that it was a confidential communication and therefore privileged. But it was admitted, to which he excepted.

Conceding without deciding, that the letter was a privileged communication in the hands of the daughter to whom it was given, and conceding that it would have been a privileged communication in the hands of the wife, yet this was not a reason for excluding it, coming into the possession of the prosecution as it did. When papers are offered in evidence, the court can take no notice of how they were obtained, whether legally or illegally, properly or improperly, nor will it form a collateral issue to try that question. 1 Greenl. Ev. s. 254a; 1 Whart. Ev. s. 586. Thus, in Jordon v. Lewis, H. 13 Geo. 2, B. R., reported in note to Legatt v. Tollervey, 14 East 302, a copy of an indictment obtained without authority was held not to be inadmissible for that reason; and Lee, C. J., said that the court could not notice the manner in which it was obtained. This case was followed in Legatt v. Tollervey, and a record of the Quarter Sessions, produced without authority, held admissible notwithstanding. These cases were approved and followed in Commonwealth v. Dana, 43 Mass. 329, 337.

In Lloyd v. Mostyn, 10 Mees & Welsb. 478, the bond in suit was in possession of W., who held it as the representative of a former attorney of the obligors, and was himself the defendant's general attorney, though not his attorney of record in the action, and who had undertaken to produce the bond at the trial if the judge should think he was bound to do so. Before the assizes the bond had...