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Vol. I.)

MURPHY v. THE COMMONWEALTH.

[No. 11.

was alleged to have been made was asked if he did not tell his wife that the prisoner acted only in his own defence. 1. The answer to the question may tend to criminate himself, and the testimony is inadmissible. 2. It required him to state a communication supposed to have been made by him to his wife, which, if made, was a confidential communication, and which he was not bound to

disclose. 4. Where a question is put to a witness which he answers, and which relates to a

collateral matter not connected with the subject of the prosecution, his answer to

that question is conclusive, and cannot be contradicted. 5. In this case, after the witness was asked the question whether he did not state to

his wife that the defendant had acted only in his own defence, and he had answered the question denying that he had done so, the wife of the witness was introduced to prove the statement was made to her. She is not a competent witness to prove it, though at the time it was alleged to have been made they were

living apart from each other, but not divorced. 6. A man is taken to intend that which he does, or which is the natural and necessary consequence of his own act. Therefore, if the prisoner wounded the prosecutor, by the deliberate use of an instrument likely to produce death under the circumstances, the presumption of the law is that he intended the consequences that

resulted from said use of said deadly instrument. 7. Malice may be inferred from the deliberate use of a deadly weapon, in the absence

of proof to the contrary. 8. Where there are two counts in an indictment for a felony, and there is a general finding by the jury of " guilty,if either count is good, it is sufficient.

At the October term for 1872 of the county court of Scott County, Alexander Murphy was indicted for making an assault on John Murphy, with intent to maim, disable, disfigure, and kill him. The indictment contains two counts. The first charged the assault with the felonious and malicious intent, in the usual form ; and there was no doubt that it was a good count. The second charged that “ Alexander Murphy, on the day of

- in the year 1872, in the county of Scott, did make an assault in and upon the body of one John Murphy, and him the said John Murphy felonionsly did strike on the head with a hoe, and by so striking the said John Murphy on the head as aforesaid, with the hoe as aforesaid, he, the said Alexander Murphy, then and there feloniously and maliciously did cause the said John Murphy great bodily injury, with intent, him the said John Murphy, to maim, disfigure, disable, and kill; against the peace and dignity of the commonwealth.'

The proceedings in the case are fully stated in the opinion of Judge Moncure.

J. A. Campbell f Lane, for the prisoner. The Attorney General, for the commonwealth. MONCURE, P., delivered the opinion of the court. This is a supersedeas to a judgment of the circuit court of Scott County, affirming a judgment of the county court of said county, convicting the plaintiff in error, Alexander Murphy, of felony, in feloniously and maliciously striking and wounding his father, John Murphy, with intent to maim, disfigure, disable, and kill the said John Murphy. The errors complained of appear in the several bills of exception, which were taken to opinions of the county court given during the progress of the trial. We will notice them in the order in which the said bills of exception were taken and are numbered in the record. And,

Vol. I.)

MURPHY v. THE COMMONWEALTH.

[No. 11.

First. We are of opinion that the county court did not err in overruling the motion of the plaintiff in error to withdraw his plea of not guilty, and file the special plea set out in the first bill of exceptions. Even if the special plea had been offered in time it presented no bar to the prosecution, and was properly rejected on that ground. It avers that the plaintiff in error had been charged before a justice of the peace of said county with having committed an assault upon the said John Murphy; that the said justice had jurisdiction of the case, and after hearing all the evidence, found the accused guilty of the assault charged, and adjudged him to pay the sum of ten dollars as a penalty therefor and costs; that the said judgment was final, unrevoked, and in full force ; that the assault and battery so charged, and of which he was so convicted before said justice, is the same identical offence set forth in said indictment; and that the record of said proceeding had been lost, so that the same could not be produced; but that he was ready to make proof of the same by said justice and others.

This proceeding before a justice of the peace must have been under the act approved March 30, 1871, entitled “ An act to extend the jurisdiction of police justices and justices of the peace in certain cases;” Acts of Assembly, 1870–71, p. 362. But that act, while it gives to justices of the peace “concurrent jurisdiction with the county and corporation courts of the state, of all cases of assault and battery, not felonious, occurring within their jurisdiction,” gives them no jurisdiction whatever of such cases of assault and battery as are felonious. And as the assault and battery charged in the indictment in this case, and of which the accused was convicted by the verdict and judgment, was felonious, therefore a justice of the peace had no jurisdiction of the case; and any judgment which may have been rendered by a justice as alleged in said plea is null and void, and was no bar to the prosecution for the felony.

But even if the accused had been indicted and convicted of a mere assault and battery, in the county court having jurisdiction of such an offence generally, the conviction would not have been a bar to an indictment for a felony in the perpetration of which the assault and battery was committed. The misdemeanor in such case is considered as merged in the felony. “Where the prisoner has been convicted of a misdemeanor, and is afterwards indicted for a felony, the two offences have been considered so essentially distinct, that a conviction of one was deemed no legal bar to the indictment of the other. In the Commonwealth v. Roby, 12 Pick. R. 496, the misdemeanor was an assault charged to have been committed with intent to murder. After conviction of this offence, the party assaulted died, and then the prisoner was indicted of murder. He pleaded autrefois convict, to which there was a demurrer; and after full argument and great consideration, the judges came unanimously to the conclusion, that the facts constituting the murder would not have been competent evidence to warrant a conviction of the assault, and judgment was entered that the plea was not good, and that the prisoner should answer over to the indictment." 3 Rob. Pr. (old ed.) 131.

Secondly. We are of opinion that the county court did not err in excluding certain evidence from the jury, as mentioned in the second bill of exception. It is stated in that bili, " that upon the trial of this case, the

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MURPHY v. THE COMMONWEALTH.

(No. 11.

commonwealth introduced John Murphy as a witness ; and upon his examination, he was asked by the defendant if he did not state to his wife, Nancy Murphy, at his own house, a short time after he was struck by the defendant, that the defendant acted only in his own defence; to which he replied, that he did not make any such statement. The defendant further asked the said witness, Murphy, if he was not living at the time in a state of adultery, and that the

difficulty arose by his espousing the cause of the said Mary Elliott; to which he replied that he never had any sexual intercourse with the said Elliott. The said Nancy Murphy was then called by the defendant, and stated that at the time of the said difficulty, said John Murphy and Mary Elliott were living together as man and wife; that he had driven the witness, his wife, off, some six or seven years since, and also his children, and they still live apart; and further, that he stated to her at his own house, a short time after the difficulty, that he would rather be killed than that Mary Elliott should be hurt; and that at the time Alexander Murphy, the defendant, struck him, he was acting only in his own defence; all of which, upon the motion of the commonwealth, was excluded from the jury;" to which the defendant excepted.

The evidence thus excluded consisted of answers of the witness, John Murphy, to two questions put to him by the defendant on cross-examination; and a statement made by the witness, Nancy Murphy, on her examination in chief by the defendant. The court did not err in excluding the first question propounded to the witness, John Murphy, and his answer thereto: 1st, because the question tended to criminate the witness; and 2d, because it required him to state a communication supposed to have been made by him to his wife, which, if made, was what the law considers a confidential communication, and which he was not bound to disclose. Nor did the court err in excluding the second question propounded to the said Jobn Murphy, and his answer thereto : 1st, because the question tended to criminate the witness; 2d, because the fact sought to be proved by the answer to this question was wholly irrelevant and inadmissible evidence in the case ; and 3d, because the answer of the witness to the question, “ that he never had any sexual intercourse with the said Elliott, denied the guilt imputed to him by the question ; which being a collateral matter not connected with the subject of the prosecution, his answer to the question was conclusive, and could not be contradicted by any testimony on behalf of the defendant. In regard to the statement made by the witness, Nancy Murphy, wife of the said John Murphy, the court did not err in excluding it, if not because the whole of it tended to criminate her husband, at least, because that part of it which related to John Murphy and Mary Elliott's living together as man and wife, and to his having driven off his wife and children, and living apart from them, was irrelevant and inadmissible evidence in the case, and because the residue of it disclosed communications supposed to have been made by the husband to the wife, is what the law considers confidential; and which, therefore, she had not a right to disclose.

To show that the evidence of the wife was admissible in this case, 1 Phil. on Ev. top page 68, marg. 84, was referred to, and relied on by the counsel for the plaintiff in error. It is there said, that " although the husband VOL. I.

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MURPHY v. THE COMMONWEALTH.

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and wife are not allowed to be witnesses against each other, where either is directly or immediately interested in the event of a proceeding, whether civil or criminal, yet in collateral proceedings, not immediately affecting their mutual interest, their evidence is receivable, notwithstanding that the evidence of the one tends to contradict the other, or may subject the other to a legal demand, or even to a criminal charge." “ The rule laid down in the case of the King v. The Inhabitants of C'liviger," 2 T. R. 263, it is further said by that writer (namely, that a husband or wife ought not to be permitted to give any evidence that may even tend to criminate each other), “is now considered as having been laid down in terms much too general and undefined.” He then refers to the cases of the King v. The Inhabitants of All Saints, 6 Maul. & Sel. 194; and The King v. The Inhabitants of Bathwick, 6 Barn. & Ad. R. 639, in which he says the rule was much discussed, and the court of king's bench was of opinion, after much argument, that the rule laid down in The King v. Cliviger was too large and general. In a subsequent case, however, The King v. Gleed, 2 Russ. Cr. & M. 983, ed. by Greaves, also mentioned by Phillips, “Upon an indictment for larceny, where a woman was called on the part of the crown to prove that her husband, who had absconded, had been present when the article was stolen, and that she saw him deliver it to the prisoner, — Taunton, J., after consulting with Littledale, J., rejected the witness. His lordship says: The evidence of the wife here would directly charge the husband with being a principal ; and although there is no prosecution pending, her evidence cannot but facilitate an accusation against her husband. Now the law does not allow the wife to give evidence against her husband, and it is quite consistent with that principle, that this evidence should not be received.'” “It may be doubted, however,” says Phillips, “ whether this ruling was correct. It would certainly appear not to be so upon the principles laid down in Rex v. Bathwick (which was cited in the case), for if the husband were indicted for the theft, the wife could not be a witness on that trial, nor could anything she had said on the former trial be in any way adduced in evidence

against him."

Thus the law seems to stand in England, where the weight of authority now is, that in such a case as this the testimony of the wife would not be inadmissible on the ground of interest, and that it tended to criminate her husband ; and the weight of authority in this country, that is, in the states of this Union, may be the same way. See 1 Greenl. on Ev. § 342 and notes. But in Stein v. Bowman, 13 Peters R. 209, the case of The King v. C'liviger, 2 T. R. 263, is mentioned without disapprobation by McLean, J., in delivering the opinion of the court, though he refers also to the subsequent case reported in 6 Maul. & Sel. 194, and concludes that the law does not seem to be entirely settled how far in a collateral case a wife may be examined on matters in which her husband may be eventually interested. The most that can be said on the subject seems to be, that the law upon the question is unsettled.

But we do not deem it necessary to decide the question in this case, as there is another ground upon which we think that so much of the evidence rejected as is relevant to the case is clearly inadmissible — we mean that portion of the evidence of Nancy Murphy, which says that her husband

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MURPHY v. THE COMMONWEALTH.

[No. 11.

con

“ stated to her at his own house, a short time after the difficulty, that he would rather be killed than that Mary Elliott should be hurt, and that at the time Alexander Murphy, the defendant, struck him, he was acting only in his own defence.” The ground on which this evidence is inadmissible is thus stated in Greenleaf on Evidence, $ 254: “ Communications between husband and wife belong also to the class of privileged communications, and are therefore protected, independently of the ground of interest and identity, which precludes the parties from testifying for or against each other. The happiness of the married state requires that there should be the most unlimited confidence between husband and wife ; and this confidence the law secures, by providing that it shall be kept forever inviolable ; that nothing should be extracted from the bosom of the wife which was confided there by the husband. Therefore, after the parties are separated, whether it be by divorce or by the death of the husband, the wife is still precluded from disclosing any conversation with him ; though she may be admitted to testify to facts which came to her knowledge by means equally accessible to any person not standing in that relation.” Several authorities are cited in the note to this section, but only two of them will be noticed here. In Stein v. Bowman, 13 Peters R. 209, it was held that a wife, after the death of her husband, cannot be allowed to prove that her husband had confessed to her that he had committed perjury in a deposition read in the cause. McLean, J., in delivering the opinion of the court, said: “In the present case the witness was called to discredit her husband; to prove, in fact, that he had committed perjury, and the establishment of the fact depended on his own confession fessions which, if ever made, were made under all the confidence that subsists between husband and wife. It is true the husband was dead, but this does not weaken the principle. Indeed, it would seem rather to increase, than lessen, the force of the rule. Can the wife, under such circumstances, either voluntarily be permitted, or by force of authority be compelled, to state facts in evidence which render infamous the character of her husband? We think, most clearly, that she cannot be. Public policy and established principles forbid it.” In Robin, fc. v. King, 2 Leigh, 140: In a suit by persons held in slavery against their master, to recover their freedom, defendant claimed plaintiffs as slaves by purchase of them as slaves from W. K., deceased; and plaintiffs offered K. K., widow of W. K., to prove that W. K., in his lifetime, before sale to defendant, repeatedly declared, in presence of his family, and without injunction of secrecy, that the mother of plaintiffs then held by him in slavery was an Indian woman. Held: Widow not competent witness to prove such declarations of her deceased husband. This is the reporter's abstract of the decision. Judge Carr, in his opinion, in which the other judges concurred, fully recognizes the principle of evidence which forbids the disclosure by a husband or wife of confidential communications received from the other. After citing and commenting upon several cases of the kind, he says: “ These are cases in which the husband was a party; but the principle applies also where he is no party; for in the one case or the other, it is equally a violation of the confidence reposed, to divulge, in a court of justice, what was imparted in the sacred privacy of domestic intercourse ; and of this opinion, Starkie seems to be." After quoting a

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