#### STATE AND CITY OF CHARLOTTE v. SAM WALLACE and LULA WALLACE.

(Filed 7 May, 1913.)

1. Criminal Law — Husband and Wife — Letters^-Evidence of Third Persons.

Upon a trial of a husband for a criminal offense, it is competent for a third person as a witness to introduce in evidence a letter written by the prisoner to his wife relevant and pertinent upon the question of his guilt, and procured without the consent or privity of the wife; and such evidence is not against the policy of the common law that the wife should not be per*623mitted to testify against or offer in evidence communications to her from her husband with incriminating effect upon the latter.

2. Same — Unlawful Search.

It is held that the unlawful procurement, by searching his home in his absence, of a letter pertinent and relevant to the prisoner’s guilt upon the charge of a criminal offense, will not affect its introduction in evidence upon the trial.

3. Criminal Law — Larceny—'Circumstantial- Evidence — Questions for Jury.-

Upon a trial of larceny "of a package of money from an express company, there was evidence tending to show that, while it was being delivered by one express messenger to another in a car, the prisoner came to the car door and left; that the package containing the money could not thereafter be found; that the prisoner had theretofore declared he was without money, find thereafter changed and spent several bills of the denomination of $20, there having been a number of $20 bills in the lost package, one of which was identified as one which the defendant had; that the prisoner had made contradictory or untruthful statements of where he had received the bills found in his possession, had asked a witness to make a false statement of where he had gotten a bill which he had given him, and fled from town upon the approach of the express messengers with an officer of the law: Held, circumstantial evidence of guilt sufficient to sustain a conviction.

4. Same — Advertisement—Evidence of Flight.

Where the flight of the accused charged with larceny, with other relevant circumstantial evidence, is sufficient upon the question of his guilt, evidence that he was advertised for is competent as a circumstance to show he "had fled from the officer of the law; and in this case immaterial, as the prisoner had admitted his absence.

5. Appeal and Error — Objections and Exceptions — Unanswered Questions.

Where the materiality of an excluded unanswered question does not appear of record, it will not be considered on appeal.

6. Appeal and Error — Instructions—Favorable to Appellant.

Where appellant’s prayer for special instructions have been given by the court, with additions favorable to him, he cannot complain for alleged error therein.

Appeal by defendant from Webb, J., at December Term, 1912, of Hecxlenbttkg.

*624Tbe defendants, Sam Wallace and Lula Wallace, were indicted-for the larceny of $1,650 in money, the property of the Southern Express Company, a corporation, and were tried together.

After hearing the evidence, his Honor charged the jury that there was insufficient evidence to pass upon the guilt of Lula Wallace, and instructed the jury to return a verdict of “not guilty” as to her.

The State introduced evidence that a package containing $1,650-, which was being shipped by the Southern' Express Company from the Treasury Department at Washington, D. C., to the First National Bank of Shelby,. N. C., was lost on 27 May,. 1912, in the city of Charlotte. This was what was called by Miss Martin, a witness for the State, who held a position in the Treasury Department at Washington, “fit money,” that is, money fit to go back into circulation, this witness testifying that on 23 May, 1912, she approved a package of money, $1,650, "fifty 20’s and sixty-five 10’s, the-First National Bank notes of Shelby, this money having been once put in circulation and having gone back into the Treasury Department and rendered again fit for circulation.' _ The witness ¡testified that she placed this money in a particular kind of envelope and sealed it, the same kind of package which was introduced in evidence, and that the money in the package was of the -same class and character of the bill introduced and marked “Exhibit A.”

William Marsh testified that he was night money clerk; that his records show that he received a package containing $1,650, which was being shipped to the First National Bank of Shelby, N. C.; that this package was the one that was lost; that he got the package from the express messenger on train No. 35, the train which came from Washington tcj Charlotte; that he received the package on Saturday night, 25 May, at 7:15 o’clock, when he turned'it over to J. H. Massey, the day money clerk.

J. H. Massey, the day money clerk, testified that he remembered receiving the package from Marsh on the morning of 27 May, and that his records also show an entry of receipt of this package, which entry he made himself; Marsh took the packages *625from the safe tbat morning just before be turned them over to him; that he receipted for them and placed them in his .safe, and about 9 or 10 o’clock Mr. E. W. Plexico, the transfer clerk, whose business it was to transfer the money to the Seaboard station, came, and he turned the packages over to Plexico; he gave it to Plexico and Plexico took it and carried it towards his safe; that Plexico walked around the radiator to the door.

E. W. Plexico testified that he was transfer clerk; that he received a sealed package of money, $1,650, from Washington to the First National Bank of Shelby; that he was just inside of Mr. Massey’s office when he received it; that when he got the packages he went to the safe with them and dropped the packages down into the safe; that Sam Wallace, the defendant, was standing behind him, waiting to get the packages to take them to the wagon; that he dropped the packages into the safe and then locked it and stepped inside the room; that after the safe was locked, which was a portable safe,'Sam Wallace, the defendant, was told to get it, and defendant carried the safe to the wagon, and Yan Grier drove the wagon to the Seaboard depot; that when the witness got to the Seaboard depot, the train from Rutherfordton came in; he opened the safe, took out the contents and put them in his book, and had the driver, Yan Grier, to drive him across to the car; the defendant, Sam Wallace, was standing near the car door, and witness stepped right out of the truck into the car door; that the witness then gave the messenger on the Seaboard train his book to sign for, and he found that the package of money was gone; that the witness looked in the car, went back to his safe, and also followed over the route to see if he had dropped it; he didn’t find it, and has never found it.

Mamie Crawford testified that on 8 August, 1912, she saw Sam Wallace at the house of a woman named Rose Chestnut, and asked Sam for .a nickel for street car fare; that Sam Wallace gave her a $20 bill and told her to get it changed and she could have the nickel; that she took it to Beulah Carpenter, who was on her way uptown, and asked her to get it changed; that Beulah came from uptown and gave her'the change, and *626tben they took it up to the house whqre Sam Wallace was; Beulah went with her to where Sam Wallace was, and told Sam that she got the money changed uptowh at the express office; that the man questioned her about it anjd looked like he didn’t want to give her the change; Sam asked ,ier what they said, and she said they asked her where she got this money; Sam said: “Why didn’t you tell him that your husband give it to you?” That nothing more was said until some one said, “Here comes the expressman and the police”; that Sam further cautioned her, “If they ask you where you got this money, tell them that your husband gave it to you.” Beulah feaid, “I can’t tell them that, because I haven’t got no husband.” Sam got up and went out of the room, and didn’t come back while witness was there.

Beulah Carpenter saw the witness, Mamie Crawford, on 8 August, 1912, receive the $20 bill which she had changed at the Southern Express office. This was ihe bill which was identified by John W. Hatley as the bill that he changed; the witness said that the man at the express office asked her where she got the bill, and she told him that a man gave it to her. She also testified that she “came about getting into trouble about it,” and S.am asked her why she didn’1 say that her husband gave it to her; that two men came down the railroad, and that Sam went out the door, and afterwards she didn’t see him until the trial at the recorder’s court. !

Beulah Pressly testified that she was at the same place, and corroborated Beulah as to what Sam said, and further stated that some one said, “The police is coming,” and Sam went out the door.

Williar^ Young testified that he was at Rose Chestnut’s house on the same day that Sam was there; that a girl asked Sam for a nickel; that he went out on the porch and took the money out and went in the house; that there were three $20 it to the girl; that he, girl got back with the bills; he took one of them off and gave the witness, was in the yard when the change; he saw Sam leaving the house!, going a trot; that at that time the policeman was coming in:at the back.

*627Tom Brown, a colored porter wbo is running on tbe Southern Railroad, about 1 August, 1912, said that Sam Wallace got on tbe train at Griffiths, about four miles from Charlotte, at 6:40 or 6:50 in tbe morning. -This wás tbe time that Sam left Charlotte. That be went through Chester to Cornwallis.

John W. Hatley said that Beulah Carpenter brought a $20 bank note issued by the First National Bank of Shelby to the express office to get it changed; that' he took the number and asked where she got it; he gave her the change for it and turned it over to the cashier.

There was evidence that Lula Wallace, wife of Sam Wallace, paid W. C. McDonald, furniture collector, about 11 June, 1912, a $20 bill when he went to collect $1.

There was evidence that on 23 July, 1912, Lula Wallace gave Mrs. W. B. Moore a $20 bill in payment of a bill for $4.98.

There was evidence that the defendant Sam Wallace had a $20 bill on an excursion which went to Mooresville, about the 26th of June.

There was evidence that the defendant was arrested twice prior to his arrest in September; that he was arrested once or twice after the excursion to Mooresville; that the witness Johnson talked to Sam about the money business, and he denied having but “75 cents to his name.” After he had been arrested in October and asked to account for the $20 bill which he gave Mamie Crawford, he stated that he got this bill on an excursion train to Mooresville.

There was-evidence that the defendant had three front teeth crowned with gold before he left Charlotte, and that after he was found the crowns .had been taken off.

For the purpose of showing the rigid business methods of the express company, and for all other purposes for which the question may be competent, the defendant asked the State’s witness, Marsh: “Do you know what bond Plexico was under?” Upon objection by the State, this question was excluded, and defendant excepted.

A policeman testified that, acting under a search warrant, he searched the home of the defendant, and found there a letter *628which the State identified as a letter written by the defendant to his wife. This letter was admitted in evidence, the defendant ’ excepting. ■ :

The letter was material as impeaching- evidence, ■ the .defendant having denied on the witness stand that he went to Tampa, Florida, after he left Charlotte, and thfe letter containing the statement that he had done so. !

The State introduced evidence that after the defendant left Charlotte advertisement was made for him, and that post-cards were written to different points, describing him, and defendant excepted.

The defendant requested his Honor to charge the jury that, “taking all the evidence into consideration, it would not warrant the conviction of the defendant Sam Wallace, and you are therefore instructed to return a verdict of ‘Not guilty.’ ” “That although the evidence may excite susp: cion, even strong suspicion, in your mind that the male defendant is a guilty person, still, if it is a rational conclusion that some other person may have committed the crime, it is your duly to acquit him.”

These requests were denied, and defendant excepted.

His Honor charged the jury, among other things: “I am going to use the language as given by the attorneys for the State and the defendant. The State, as I have stated, relies upon circumstantial evidence in this case, and the court instructs you that each fact proving a necessary link in the chain must point to the guilt of the accused and must be as clearly and as distinctly proven as if the whole question depended upon it. The court further instructs you that in cases of this kind, where the State relies upon circumstantial evidence, that in order to convict the defendant the evidence must be clear, convincing, and conclusive; it must be natural, clear, and satisfactory. If the facts proven could all' be true, and still .not inconsistent with the innocence of the defendant, your verdict should be ‘Not guilty.’ In order to convict the defendant, the evidence must naturally and necessarily imply his guilt, and it must exclude the probability that some one else might be the. guilty party. If you should find that the evidence only raises *629in your minds a strong suspicion of tbe defendant Sam Wallace’s guilt, or that it is .not inconsistent with his innocence, the court instructs you that- it would be your duty to acquit-him.”

There was a verdict of guilty as to Sam Wallace, and from the judgment pronounced thereon, he appealed.

Attorney-General Bickett and Assistant Attorney-General Galvert for the State.

Walter B. Henry, T. L. Kirkpatrick, and Stewart .& McRae for defendant.

AlleN, J.,

after stating the case: The exceptions chiefly relied on by the defendant are to the admissibility of the letter alleged to have been written by the defendant to his'wife, and to the refusal to instruct the jury that the evidence was not sufficient to sustain a conviction. The objection to the introduction of the letter is upon two grounds:

1. That it is a confidential communication between husband and wife,' which is excluded by the rules of the common law upon grounds of public policy.

2. That the letter was obtained by an illegal .search of his premises, and to admit it in evidence is violative of the constitutional protection against unlawful searches and seizures, and of the principle that he cannot be compelled to incriminate himself.

1. The authorities seem to be uniform that a third person may testify, to an oral communication between husband and wife, although his presence was not known, but there is much diversity of opinion as to the right to introduce a writing from one to the other in the hands of a third person.

The cases are collected in the notes to Gross v. State, 33 L. R. A. (N. S.), 478, and Hammons v. State, 3 A. and E. Ann. Cases, 915.

It is difficult to find a satisfactory reason for the .distinction. The rule of the common law is based on "the confidential relationship existing between husband and wife, and the importance to the public' of maintaining this relationship, deeming it *630wiser and to tbe public interest for some particular evidence to be suppressed than to require tbe husbaind or wife to disclose a communication between them, as to dc so “might be a cause of implacable discord and dissension between tbe husband'and wife, and a means of great inconvenience” (S. v. Brittain, 117 N. C., 785); but tbe inhibition is as to the husband or wife, and not to a third person, and if tbe ommunication by tbe husband is in writing, and is procured by a third person, without tbe consent or privity of tbe wife, tbe reason for tbe exclusion of communications at common law no longer exists.

In our opinion, tbe rule is stated correctly in Whar. Or. Ev., sec. 398: “Confidential communications] between husband and wife are so far privileged that tbe law refuses to permit either to be interrogated as to. what occurred in their confidential intercourse during their marital relations, covering, therefore, admissions by silence as well as admissions by words. The-privilege, however, is personal to the parties; a third person who happened to overhear a confidential conversation between husband and wife may be examined as to such conversation. A letter, also, written confidentially by husband to wife is admissible against the husband, when brought into court by a third party.”

2. The second objection is fully met by Adams v. New York, 192 U. S., 595. In that case the defendant was convicted of the crime of having in his possession certain gambling paraphernalia, and one of the assignments of-error was:

> “First. That the court erred in holding that by the reception in evidence of the defendant’s private papers, seized in the raid of his premises, against his protest and without his consent,‘which had no relation whatsoever to the game of policy, for the possession of papers used in connection with which said game he was convicted, 'his constitutional right to- be secure in his person, papers, and effects against unreasonable searches and ¡seizures was not violated, and that he was also thereby not compelled to be a witness against himself in contravention of the fourth, fifth, and fourteenth articles of amendment to the Constitution of the United States.”

The Court, in passing on this assignment, -says: “We think *631there was no violation of the constitutional guaranty of privilege from unlawful search or seizure in the admission of this testimony. Nor do we think the accused was compelled to incriminate himself,” and Greenleaf Ev., vol. 1, sec. 254a, is quoted with approval, as follows: “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.”

The Court also discusses Boyd v. United States, 116 U. S., 616, and shows that that decision is confined to the consideration of the constitutionality of an act compelling a party to produce papers in an action to enforce a forfeiture.

The .same section from Greenleaf, taken from the Adams case, is approved in People v. Adams, 176 N. Y., 359; Com. v. Tibbetts, 157 Mass., 519; S. v. Griswold, 67 Conn., 306, and the same doctrine is declared in S. v. Fuller, 34 Mont., 26;. Jacobs v. People, 117 Ill., 206; Hartman v. U. S., 168 Fed.. Rep., 33; Imboden v. People, 90 Pac. Rep., 620, and in other cases.

We are, therefore, of opinion there was no error in admitting the letter.

The evidence was sufficient to sustain a verdict of guilty. If true, the defendant had the opportunity to steal the money as charged; he was found in possession of at least one bill of the Shelby Bank of the same denomination as that stolen; he and his wife had no other bills of that denomination; he made false statements about the money and tried to induce another witness to make a false statement,, and he fled.

We see no materiality in the question asked the witness Marsh, and there is nothing to indicate what answer the witness would have made.

The evidence as to advertising for defendant was competent on the question pf flight, but in any event it had no relevancy except to prove that the defendant was absent from Charlotte, and this he admitted.

*632His Honor charged the jury as favorably as the defendant was entitled to: The first prayer forinstructions could not have been given, as there was evidence of guilt sufficient to be submitted to the jury, and the. second was embodied in the charge given, with additions favorable to the defendant.

No error.