The eastern clarion. [volume] (Paulding, Miss.) 1837-1863, 1860-04-18

T.. L. Dunlap ". NJ. +. Hearn.
The defendant in error commenced his
action of replel N in the Court below to
recoEer Of the defendant below a negro
girl.
The plea of not guilty was filed, and the
cause submitted to a jurv on tne teStirlo-
ny, who returned a rdict 70. defendant
in error. A no ion for aIey trial was
made and refused, and exec ptions filed.
and the cause brought to this Court Oh
writ Of error. Many points as to the adj
instability of te-timony were reserved. all
of which, together with the charges of the
Court given for defendant in error. As
well as the refusal of the Court to lrant a
new trial, are assigned for error.
We will proceed to consider these as
signments in their order.
L. 1t Is insisted that the Court erred in
permitting the wife to testify for the de
PENDANT in error, and it is urged in SUD.
port OF this position that it was not alone
the interest of the wife, which, prior to
our late statute disqualified her from be-
ing a witness for or against the husband.
but 1T was a disability imposed upon
grounds Of public policy, and arising out
of the sanctitv of this re'ation and the
unity and idertity of person which the
law, for wise purposes, has e tablish ed be
tween them and it is further urged that
to permit the wife to be made a witnes,
for or against her husband is to DESTROY
the secret confidence be ween them, and
expose to public view the advisory coun.
sels of domestic life.
Prior to the passage of the act of 81.
Code p. so, art. 100 and 1913. the husband
and wife were incompetent to testify for
or against each other, not only on ac.
count of the identity of IL cir legal right,
and interests, but more especially on ac
count Of the privilege sanctitv with which
the law regards the confidential inter
cor.se of married life Communication,
between husband and wife (savs Mr.
Greenleaf, vol. l, y. 1888, Z 254, belong
also to the class of privileged communities
tlols, and are, therefore, protected indie
perdently of TIE ground of interest and
IDENTIFY, which precludes the parties from
estnylng Tor or against each other The
happiness of the married state require.
that there should be the most unlimited
confidence between husband and wife
nd this confidence the law secures by
providing that it shall be kept forever in
.Iolable, that nothing shall be extracted
from the bosom of the wife which wa
cOntided there by the husband. Green
leafe Ev. z 334 p. $50. "The great object
of the rule is to secure domestic happi
ness by placing the protecting seal of til,
law upon all confidential communication
between husband and wife and what
ever has come to the knowledge of eithe
by means of the hallOwed confidenc,
which that relation inspires cannot be at
forwards divulged in te stimony, even tho
the other party be no longer living. -
Greenleaf Ev. 337 p. 452, and numerou
cases cited in notes Is edit This rule, il
its spirit and extent, is analogous to tina
which excludes confidential sommunica
lions made by client to his attorney
Id. 1913 p. 4j3.
1t is not, therefore. by reason of inter
est 'fn the suit or in the result thereof
alone that the wife is excluded as a wit
ness for or against her husband at CON
mon law; and hence the statute in tn
new Code does not remove her disabilit
growing out Of the privileged sanctity {
the marital relation.
This is made more manifest bv the las
article of Il, Code D. $40, which make
special provision that I'm criminal case
husband and wife shall be competent wi
nesses for each other"
If they had been rendered general
competent by the previous article l9t
his last provision would have been III
necessary. We think, therefore. this te
timony should have been excluded.
This disposes of the |, ,, 3, 4, ) and Ct
assignments of error.
The 9TH assignment of error relates
he admission of the testimony of Mi
Hearn to prove that the wife of the plat
tiff in error said Mother had never Give
her anything"
This evidence did not tend to establi:
the issue.
1t did not tend to show that the faith
lad never given her the girl in disput
md was therefore wholly irrelevant.
The Sth assignment presents the quC
ton whether the statements of the san
witness that my sister never owned Il
slave in controversy" and mother ext
cises great control over everything, we
competent evidence to 90 to the Jury.
The first statement amounts only to 4
expression of legal opinion. or the stat
ment of legal conclusion, instead of
! ,tatement Of facts upon which the Cou
! and jury might pronounce, and the latt
, statement as to the influence of her n
? her in the family, could have no releva
cy to the issue. The evidence shou
p therefore have been excluded.
( The 9th assignment presents the ou
I ton whether the plaintiffs stateme
I that 1.-The negro in controversy was
: own property was not competent. tt
T. was but the statement of the conclusion
Jaw at which the mind of the witness h
/ arrived from his knowledge of the fac
: 1t is the province of the Jury after he
+ ing the facts under the instruction of t
! Court, to determine this question. a
Q not Of the witness to determine it
i them, or to express his opinion.
# must state facts and circumstances. a
. have the jury to draw conclusions and
. ferences from these facts.
g This evidence should have been exc
= ded therefore.
l. The 10th assignment of error is that |
Court erred in giving the |. .. 3, 1 and
e charges for the plaintiff below.
o The first charge, with the qualiicati
D. contained in a subsequent one, that tn
s. years adverse possession, even in case c
C loan. would bar the plaintiffs recove
d we think was not Objectionable, but c
Ie rectly stated the law.
v The End charge, that 1.-THE direct a
positive knowledge of one witness is
3. more value and force than the doubt
10 | recollections of certain transactions of
a. witnesses" is liable to several oblsctIo
g. IL Is first abstract, as no question as TO
ID positive knowledge Of any fact was invo
d | ed in the cause, but the question '
whether the proof established loan
o. gift, or in law vested title to the negro
D. dispute in the defendant below.
Iy .. The charge assumes that the swe
ii | ing of one witness whether credible
II mott directly and positively to the kno
i. 1 edge of any fact, or to MS knowleclge
n, the law upon II given state Of facts ex
d ing in his own mind, is Of greater va
h. than the doubtful recollections of ten v
be nesses-this giving Importance to {
n dence in a ratio directly proportioned
IL holiness or recklessness of the witnt
n without regard to his credulity.
C. 3. The charge assumes that ~
a lections "f some wit IRE --.o re-
he to cram transactions, and that
at knowledge Of others is direct and.posit
a | and assumes IN instruct tho iurv ~