Commonwealth v. Fisher

Mr. Chief Justice Mitchell,

dissenting :

This judgment is being reversed upon two presumptions, one piled on top of the other without any evidence to support either. What the statute prohibits is that “ neither husband nor wife shall be competent or permitted to testify against each other .... nor shall either husband or wife be competent or permitted to testify to confidential communications made by one to another.” There is not a scintilla of evidence that either branch of the statute was violated in this case. The wife did not testify at all. Certain letters written by other persons in the name of the husband and addressed to the wife were offered and admitted in evidence. Whether letters dictated by a husband and written by other persons can be called confidential communications to his wife is at least an open and doubtful question. But waiving that there is no evidence that the letters ever reached the wife. It was not shown at the trial that they did reach her or even that they were mailed to her. It is true that subsequent to the trial the envelopes in which the letters were alleged to have been inclosed, were produced and appeared to have been regularly stamped and mailed. If this fact had appeared at the trial, which it did not, there would under the cases have been a presumption that they reached the wife. But the presumption would have stopped there. When the letters appeared at the trial in the hands of the commonwealth there was no explanation asked of the district attorney nor volunteered by him as to how he got them. The conclusion is jumped at by the further presumption that the wife gave them to the commonwealth, and that.in so doing she was testifying to confidential communications. There is no evidence nor any presumption, either of fact or of law, to support such a conclusion. She might just as probably have lost them by carelessness, or by the treachery of the fellow prisoners whom the defendant trusted with them in the first place, as they testified on the stand. It is very old and very sound law that a presumption founded on a presumption is not valid. I see no good reason for making a different rule in favor of a convicted murderer. I would affirm the judgment.

Mr. Justice Potter joins in this dissent.