The opinion of the court was delivered by
Valentine, J.:
This was a criminal prosecution under section 233 of the crimes-and-punishments act; (Gen. Stat. 369.) The defendant was charged with defiling one Emily Barney, a female person under eighteen years of age, by carnally knowing her while she was confided to his care and protection by her parents. The girl Emily was a sister of the defendant’s wife, and their father, Joseph M. Barney, was the prosecuting witness in the case. On the trial, the prosecution introduced in evidence a letter from the defendant to his wife. This was done under the permission of the court, but over the objections of the defendant. The defendant claimed that this letter was a confidential communication from himself to his wife, and therefore that it was not competent evidence against him. The admission of this letter in evidence is the first ruling of the court below of which the defendant now complains. For the purposes of this case, we shall assume that said letter was a confidential communication from the defendant to his wife; that it is what would ordinarily be called a privileged communication, and that it could not have been introduced in evidence in this case or in any other case, by either the husband or the wife, or against either of them, except with the consent of both, so long as the letter remained in the hands or under' the control of either of them, or in the hands or under the control of any [614] agent or representative of either of them. We assume this however without desiring to express any opinion upon the subject. And with this assumption, was the said letter wrongfully introduced in evidence? We think not. It would seem that the letter was in the hands and custody of Joseph M\ Barney, the prosecuting witness, at the time it was introduced in evidence. It- had previously been sent through the post-office, and by mail, from the defendant to his wife. Barney received it from the post-office, properly directed to the defendant’s wife. He delivered it to her, and she, after reading it, returned it to him, and he furnished it to the prosecution to be read in evidence as aforesaid. And there was no evidence tending to show that it was at that time in the custody or under the control of any other person except Joseph M. Barney and the prosecution. It does not appear that either the defendant or his wife had at that time any control over the letter. It is certainly true, that a communication between husband and wife is a privileged communication. But it is privileged only while it remains within their custody and control, or while it remains within the custody and control of their agents or representatives, and just so far as it remains within the custody and control of themselves or their agents or representatives. “A private conversation between husband and wife, who thought that no one overheard them, may be testified to by a concealed listener.” Commonwealth v. Griffin, 110 Mass. 181. See also, State v. Center, 35 Vt. 378. This rule also applies as to confidential communications between attorney and client. Hoy v. Morris, 13 Gray, 519; Goddard v. Gardner, 28 Conn. 172; 1 Greenl. Ev., § 239a. With reference to confidential communications between attorney and client, Dr. Wharton uses the following language: “If a legal adviser permits his client’s papers to pass out of his hands into those of strangers, or if such papers are in any way extracted from his custody, they may be put in evidence by the party by whom they aré held, as against the client. So far has this been pushed, that it has been held that if an attorney permits a witness to see [615] such writings, such witness, not being a clerk of the attorney, or legal adviser of the client, may be called to give secondary evidence of the writings, due notice being first given to produce them on the trial.” 1 Wharton’s Evidence, § 586. See also, Lloyd v. Mostyn, 10 Meeson & Welsby, 478. Mr. Greenleaf uses the following language, (probably with reference to written evidence generally, but immediately following a section concerning “communications between husband and wife,”) to-wit: “It may be mentioned in this place, that though papers and other subjects of evidence may have been illegally taken from the possession of the party against whom they are offered, or otherwise unlawfully obtained, this is no valid objection to their admissibility, if they are pertinent to the issue. The court will not take notice how they were obtained, whether lawfully or unlawfully; nor will it form an issue to determine that question.” 1. Greenl. Ev., § 2.54a.
There is no statute in this state rendering said letter incompetent evidence in a case of this kind. , The only statutes supposed to even look in that direction are the following:
Criminal Code, Section 309: “The provisions'of the law in civil cases, relative to compelling the attendance and testimony of witnesses, their examination, the administration of oaths and affirmations, and proceedings for contempt to enforce the remedies and protect the rights of parties, shall extend to criminal cases, so far as they are in their nature applicable thereto, subject to the provisions contained in any statute.” (Gen. Stat. 853.)
Civil Code, Section 333: “ * * * In no case shall either (the husband or wife) be permitted to testify concerning any communication made by one to the other during the marriage, whether called while that relation subsisted, or afterward.”' (Laws of 1872, page 335.)
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The opinion of the court was delivered by
Valentine, J.:
This was a criminal prosecution under section 233 of the crimes-and-punishments act; (Gen. Stat. 369.) The defendant was charged with defiling one Emily Barney, a female person under eighteen years of age, by carnally knowing her while she was confided to his care and protection by her parents. The girl Emily was a sister of the defendant’s wife, and their father, Joseph M. Barney, was the prosecuting witness in the case. On the trial, the prosecution introduced in evidence a letter from the defendant to his wife. This was done under the permission of the court, but over the objections of the defendant. The defendant claimed that this letter was a confidential communication from himself to his wife, and therefore that it was not competent evidence against him. The admission of this letter in evidence is the first ruling of the court below of which the defendant now complains. For the purposes of this case, we shall assume that said letter was a confidential communication from the defendant to his wife; that it is what would ordinarily be called a privileged communication, and that it could not have been introduced in evidence in this case or in any other case, by either the husband or the wife, or against either of them, except with the consent of both, so long as the letter remained in the hands or under' the control of either of them, or in the hands or under the control of any [614] agent or representative of either of them. We assume this however without desiring to express any opinion upon the subject. And with this assumption, was the said letter wrongfully introduced in evidence? We think not. It would seem that the letter was in the hands and custody of Joseph M\ Barney, the prosecuting witness, at the time it was introduced in evidence. It- had previously been sent through the post-office, and by mail, from the defendant to his wife. Barney received it from the post-office, properly directed to the defendant’s wife. He delivered it to her, and she, after reading it, returned it to him, and he furnished it to the prosecution to be read in evidence as aforesaid. And there was no evidence tending to show that it was at that time in the custody or under the control of any other person except Joseph M. Barney and the prosecution. It does not appear that either the defendant or his wife had at that time any control over the letter. It is certainly true, that a communication between husband and wife is a privileged communication. But it is privileged only while it remains within their custody and control, or while it remains within the custody and control of their agents or representatives, and just so far as it remains within the custody and control of themselves or their agents or representatives. “A private conversation between husband and wife, who thought that no one overheard them, may be testified to by a concealed listener.” Commonwealth v. Griffin, 110 Mass. 181. See also, State v. Center, 35 Vt. 378. This rule also applies as to confidential communications between attorney and client. Hoy v. Morris, 13 Gray, 519; Goddard v. Gardner, 28 Conn. 172; 1 Greenl. Ev., § 239a. With reference to confidential communications between attorney and client, Dr. Wharton uses the following language: “If a legal adviser permits his client’s papers to pass out of his hands into those of strangers, or if such papers are in any way extracted from his custody, they may be put in evidence by the party by whom they aré held, as against the client. So far has this been pushed, that it has been held that if an attorney permits a witness to see [615] such writings, such witness, not being a clerk of the attorney, or legal adviser of the client, may be called to give secondary evidence of the writings, due notice being first given to produce them on the trial.” 1 Wharton’s Evidence, § 586. See also, Lloyd v. Mostyn, 10 Meeson & Welsby, 478. Mr. Greenleaf uses the following language, (probably with reference to written evidence generally, but immediately following a section concerning “communications between husband and wife,”) to-wit: “It may be mentioned in this place, that though papers and other subjects of evidence may have been illegally taken from the possession of the party against whom they are offered, or otherwise unlawfully obtained, this is no valid objection to their admissibility, if they are pertinent to the issue. The court will not take notice how they were obtained, whether lawfully or unlawfully; nor will it form an issue to determine that question.” 1. Greenl. Ev., § 2.54a.
There is no statute in this state rendering said letter incompetent evidence in a case of this kind. , The only statutes supposed to even look in that direction are the following:
Criminal Code, Section 309: “The provisions'of the law in civil cases, relative to compelling the attendance and testimony of witnesses, their examination, the administration of oaths and affirmations, and proceedings for contempt to enforce the remedies and protect the rights of parties, shall extend to criminal cases, so far as they are in their nature applicable thereto, subject to the provisions contained in any statute.” (Gen. Stat. 853.)
Civil Code, Section 333: “ * * * In no case shall either (the husband or wife) be permitted to testify concerning any communication made by one to the other during the marriage, whether called while that relation subsisted, or afterward.”' (Laws of 1872, page 335.)
It will be seen that these statutes do not go to the extent of excluding said letter as evidence. While the civil code provides that neither the husband nor wife shall, as a witness, furnish evidence concerning confidential communications, yet it does not provide that others who may happen to be possessed of such communications shall not do so; and while the criminal code provides that the provisions of law [616] in civil cases relative to “compelling the attendance and testimony of witnesses,” and “their examination,” “shall extend to criminal cases,” yet it does not provide that the provisions of law in civil cases relating to the competency of witnesses and the competency of evidence shall extend to criminal cases. (The State v. Howard, 19 Kas. 509, 510.) A certain territorial district judge, once, however, in the early days of Kansas, thought otherwise, and permitted a defendant who was charged in a criminal case with murder in the first degree to testify in his own behalf, simply because defendants in civil cases were then (as now) allowed to testify in their own behalf. But whether said district judge would have compelled the defendant in that case to testify against himself, and in favor of' the prosecution, at the instance of the prosecution, simply because defendants in civil cases could at that time be compelled to testify against themselves and in favor of the adverse party, at the instance of the adverse party, is not known. The provision quoted from the criminal code is old. It was first enacted in 1855, (Laws of 1855, page 621, §16;) and was reenacted in 1859, (Laws of 1859, page 209, § 188; Comp. Laws of 1862, page 264, § 188;) and again reenacted in 1868, (Gen. Stat. page 853, § 209.) And the law making defendants competent witnesses in civil cases, for and against themselves, was passed in Kansas more than twenty years ago. Under section 215 of the criminal code, as amended in 1871, (Laws of 1871, page 280, §1,) a wife is a competent witness in a criminal case against her husband, if she chooses to testify. The State v. McCord, 8 Kas. 232.
All the instructions given by the court below to the jury were in writing, but inadvertently the court failed for fifteen days to sign some of them, or to file them among the papers of the case. These instructions were given on April 12th, and immediately thereafter were placed by the j udge in a private drawer of his in a table behind which he sat while the court was in session. These instructions remained in such drawer until April 27th, (which was the last day of the term of the court,) when they were taken out and copied into a [617] bill of exceptions in this case, which bill of exceptions has been brought to this court. The defendant now claims that the failure of the judge to file them with the papers in the case was a fatal error. We do not think that it was, however. The statute does not in terms, if it does at all, require that the judge should sign instructions given in criminal cases; and the failure of the judge for fifteen days to file them among the papers of the case was not under the circumstances of this case a fatal error. Of course it was error, but it was not fatal, for the reason that it did not in the least affect any substantial right of the defendant. At the time the defendant desired to have his bill of exceptions allowed, the instructions were produced, ready to be incorporated into his bill of exceptions, and were so incorporated therein, and ready to be filed with the papers in the case. And as they had been reduced to writing by the judge before they were given, and were afterward put into a safe place, there could be no question as to their being given in a proper manner, nor as to their identity. The statute applicable to this question reads as follows:
“The judge must charge the jury in writing, and the charge shall be filed among the papers of the cause.” (Gen. Stat. 858, §236.)
It is probably unnecessary for us to say anything further in this case; for, taking the record brought to this court, it really does not in any intelligent manner present any of the other questions desired to be presented by counsel for the defendant. The evidence probably proved that the defendant was guilty beyond all possible doubt; but still, as the evidence has not all been brought to this court, we cannot tell this to a certainty. The evidence however brought to this court comes near enough to proving this fact to require a strong case of mere technical error to authorize a reversal of the judgment of the court below. But no strong case, if any case, of technical error has been made out, further than we have already considered.
The record is defective in not showing many things con[618] cerning which the defendant desires to raise questions in this-court. We suppose that Joseph M. Barney was the prosecuting witness in .the case, but the record does not show that he was either examined or sworn as a witness in the case. Emily Barney, the girl alleged to have been defiled, was probably quite young, but what her age was,- except that she was under eighteen years, cannot be told from the record. It is shown that the girl was confided to the care of the defendant by her mother; but from anything appearing in the record she may have also been confided to his care by her father, and that portion of the charge complained of may have been error against the state, if error at all, instead of error against the defendant. But is it material, whether she was confided to the defendant’s care by the one, or the other, or by both? We think it is shown that she was not confided to the - care of her brother and sisters, either separately, or conjointly with the defendant; but as she was certainly confided to the care of the defendant, is it material whether she was also confided to the care of some other person, or not? She was certainly under the care of the defendant, and the defendant alone, when he defiled her.
We think it is clearly shown that the defendant fled from the country, and such fact probably was shown beyond all possible doubt.
It would probably have been out of place under the circumstances of this case for the court to have instructed the jury with reference to attempts to commit offenses similar to the one charged in this case. It would not have been proper under the evidence; and besides, the defendant did not ask that any such instruction should be given.
The court gave proper and sufficient instructions with reference to the place where the offense'must be proved to have been committed. Besides, there was no question but that the offense was proved to'have been committed in Neosho county, Kansas, just where it was charged t.o have been committed.
The judgment of the court below will be affirmed.
All the Justices concurring.