State v. Litchfield , 58 Me. 267 ( 1870 )

Appleton, C. J.

The main question, presented for our determination, is whether a telegraphic operator is bound to testify to the contents of a telegraphic message.

The case finds the message material to the issue. A verbal message, communicated to the prisoner, would be admissible, and the party communicating it would be compelled to state it. So a written message, or its contents, after due notice to produce the original, and a failure of its production by the party notified, would be received in evidence. The mode of transmission to the person delivering the message, whether by telegraph or otherwise, has nothing to do with the matter. The important inquiry relates to its materiality.

Nor can telegraphic communications be deemed any more conádential than any other communications. Telegraphic communications are not to be protected to aid the robber or assassin in the consummation of their felonies, or to facilitate their escape after the crime has been committed. No communication should be excluded, no individual should be exempt from inquiry, when the communication, or the answer to the inquiry would be of importance in the conviction of crime or the acquittal of innocence, except when such exclusion is required by some grave principle of public policy. The honest man asks for no confidential communications, for the withholding the same cannot benefit him. The criminal has no right to demand exclusion of evidence because it would establish his guilt. The telegraphic companies cannot rightfully claim that the messages of rogues and criminals, which they may innocently or ignorantly transmit, should be withheld, whenever the cause of justice renders their production necessary. They cannot wish their servants should, however innocently, cooperate in the commission of crime, and decline to cooperate in its detection and punishment, and thus become its accomplices. The interests of the public demand that resort should be had to all available testimony, which, may lead to the detection and punishment of crime, and to the protection of innocence. The telegraphic operator, as such, can claim no exemption from interrogation. Like other witnesses, he is bormd to answer all inquiries material to the issue.

The notice to produce was seasonably given, in accordance with the 27th rule of this court, 37 Maine, 576. It was before the trial commenced. The rule does not require the notice to be given before the commencement of the term.

The degree of credit, to be given to an accomplice, was submitted to the jury with proper instructions. There is no rule of law that they may not convict upon such testimony. There should be none such. The degree of credit to be given to a witness, whatever may be his character or position in a cause, should not be arbitrarily determined in advance of his testimony and in ignorance of the circumstances affecting its credibility.

The* telegraphic operator testified to receiving the telegram in question, and that she had a faint recollection of delivering it to the defendant. She had some recollection on the subject. The evi- " dence, therefore, was proper for the jury, and it was for them to consider how far and to what extent it would be safe, under all the circumstances of the case, to rely on her memory.

_Exceptions overruled.

Kent, Walton, Barrows, and Danforth, JJ., concurred.