necessary injury resulting to the plaintiff from the death of her husband." The meaning of that is, gentlemen, that you should determine, as well as youoan, what damage plaintiff will necessarily sustain by reason of the loss of her husband. You may take into account the 'age of her husband, his health and habits of life, and 'his capacity for earning a livelihood for himself and. his family, and from such considerations determine, as well as you can, what would bea fair and just allowance to the widow, -that is to say, what was her necessary loss in consequence of her husband's death.
(Oi'l'cuit Oourt, E. D. Mis8ouri, E. D. Se(ltemoer 28, 1887.)
Wrl'NESs-PntvILEGED COMMUNICATION"-LBTTERS FROM HUBBAND TO WIlrlll.
'fhe Wife's administratorfouud ltJ;llong her papers letters from her husband w:qich lllade against him in a suit in which he was then interested. The admiilistraior;in It spirit of hostility to the husband. delivered the letters to the otherliide, which to use them. Held, that the Jetters were privileged.
On Motion to Strike out Certain Exhibits. Jl}ra(ffnus McGinne88, for complainlUlt. Edward Dunningham, Jr., andl!;clward O. Eliot, for respondents. MILLER, Justice, (wally.) This case was argued on Monday on the motion to strike out certain exhibits filed in the master's report of the testimony in the case. Those exhibits were letters written by one of the defendants to his wife, and the ground of the motion to suppress them is that they are such communications as are protected by the principle which tbe.law throws around communications between husband and wife. I confess I was very much. astonished to find that there are same authoritiesw.hich hold that while the wife cannot be permitted to tell, and not only that, but will be forbidden to tell, what her husband says to her in any matter of marital or private relations, or while the private relation exists she will be forbidden to tell anything,-will not be permitted to tell anything on the stand to the injury of her husband,-I say, I am surprised to find, while that general principle prevails, that there are some authorities holding that where this evidence can be got at, either by obtaining possession of a letter, or some method of overhearing communications by some third party between the husband and wife, that this evidence can be used. We have examined these authorities, and we are satisfied that, as exceptions, they do not include the present case. In the present case the report Qf the testimony shows, concerning the party objecting to the use of these letters written to his wife, that. tuere was something like a separation. between him . and his wife, and proceedings for a divorce were instituted. Pending these proceedings the wife died, and the man who professed to be the e.xecutor or admin-
istrator of the wife's estate got hold of theiJe letter!', and, without any requirement bf his office as administ.rator, without any necessity for his using these letters in any way, he-we will not say maliciously, but in a spirit of hostility to the the letters to the other side. Whatever exceptions" there may be to the rule protecting communications between husband and wife which may exist, and in regard to which I do not propose to say anything further, I am quite clear that the wife has no right to publish' these communications; that she would not be permitted to produce the letter if she were a witness on the stand; that she could be enjoined from producing the letter if she were supposed to be hostile to her husband; and that the executor, in a voluntary ahd hostile spirit to the husband, who has letters, has no more right to produce them and deliver them over to the husband's prejudice than the wife had. What might. be the rule of law if this administrator had filed these letters in due course of admInistration for any useful purpose in a public office, and they had been obtained or copied by a third party, or ifthey,had got into the hands of the party who now seeks to use them in any appropriate and innocent nianner, I am not prepared to say; but I do rule that, under the circumstances in which these letters got into other hands, they are not to be used as evidence. I think I ought to say to the parties that, while this decisi6nprecludes the 'use of these lette11l as evidence before this court, if the action ever goes to the supreme court the letters, of course, will go accompanied with the motion to exclude them and the ruling of the court on that inotioll, and all that will be before the supreme court on appeal, and if that court thinks the letters ought to be used in evidence they will be considered so f.nat the matter is not of such extreme importance as might be supposed. But for the purpose of this trial in this court the letters will not be used. In regard to the other point that was raised, that there is no evidence that the husband received one of' these letters conveying information that looked like a fraudulent purpose, there is no reason why it should be admittedeither, and they are all rejected. The clerk will make ttre order that all three of the letters are to be dis-regarded and stricken from the testimony v.32F.no.6-24
UNITED STATES 11. MULLANEY.
(OVrC'ltz't (lou", E. D. ltli8aouri, E.D. September 20, 188'l.)
A party prosecuted in a United States district court for violating the election law, by writing namesimproperly on the registration book, who on the trial testifies, in his own behalf, that he did not write the names unlawfully written, m,aybecompelled,onhis cross-examination, to write the same names on , In the pre/lence of the jury, and such paper inay be offered in evidence a on and tbe jury permitted to compare it with the in the registrationbook; Bs,this iSB legitimate method of cross-examination,: and the witness, is ,not thereby compelled to furnish testimony ag-ains,t himself. l
Op 'writ o! Error to District Oourt. "' ThOB, P.Basnaw, Dist., Atty" for the United ,States. Ohester ,H. Krum, for defendant. ',
J., (or(tUy.) , This is a writ of error from the, district court. ,A llingleqpestion only has been presented and argued. That qU,estion is this: The defendant was chargl;ld'Yithaviolation of th,e election law. . The he wrqte nll,mes improperly on the registr!ttiop al1u testiniony tend.ing that ,fact. ,defendaJ;lt himself )Vept Qn the, witness stand, and was When it, Hsked .th;e, si:qgle qu 'stiou",hetAer wrote those names in that book. He that he did not. The goverllment, 9n called upo):} him totake a peuand write in the presence ofthejurytpose names.> objected., The court ,overrUled the objection, and pe wrot,e the names, ,and, when ,had the government, in rebuttal, offered the names thus written by him. The writing . was admitted, in Ejvidepce, and the jury were permitted to 'compare it with inthe registration error complained . of, defendant was compelled to fU,rnisp testim()J,ly against himself by thus writing in the presence of thy jury,and that the jury were WrJ;nitl1e4Jocompare this with that in, Counsel have argued the question under, aspects: First, they insist that it is not legitimate cross-examination of any witness who has simply testified that he did not make It writing; and, slxlYfld, that it is compelling him to furnish testimony against himself in violation of the constitutional protection. I think really there is but one question, and that is whether it was legitimate, in the cross-examination ofa witness who gave such direct testimony as he did, to compel him to so write in the presence of the jury. For while a defendant in a criminal case cannot be compelled to
I Respecting the latitude permissible ill a cross-examination of a defendant in a criminal prosecution, where he offers himself as witness, see Disque v. State, (N. J.) 8 AU. v. (Cal.) Rep. 281, and note; State v. Saunders. rOr.) 12 Pac. Rep. 15 Pac. Rep. 86; State v. Robertson, (S. C.) 1 S. E. Rep. 443; TlCkell v. RaIlway Co., (Mo,) 2 S. W. Rep. 407; State v. Brooks, (Mo.) 5 S. W. Rep. 257; State v. Johnson, (Iowa,) 34 N. W. Rep. 177.