Supreme Judicial Court of Maine. THE STATE v. ALDEN LITCHFIELD. Telegraphic communications are not privileged, and a telegraphic operator is bound to testify to the contents of a message, if it be material and relevant. A jury may convict on the unsupported testimony of an accomplice. THIS was an indictment for robbery. At the trial objection was made by the prisoner to the admission of a telegraphic operator to testify to the delivery of a message to the prisoner and to its contents, and the objection being overruled, exception was taken by the prisoner to the ruling on that point, and also to the sufficiency of the evidence. A. S. Rice, for the state. A. G. Jewett, for the defendant. The opinion of the court was delivered by 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 confidential 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, co-operate in the commission of crime and decline to co-operate 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 bound 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 circumstance 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 evidence 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. The foregoing opinion we intended to have published at an earlier day, but it was accidentally mislaid. It covers a very important question. There is, we apprehend, some misconception in regard to the right of the government to possess themselves of what would otherwise be held inviolably secret, in private correspondence. The question involved in this case has no very close analogy to the confidence which the law recognises between counsel or attorney and client. That rests upon the necessities of the fair and just administration of justice. If it were not for that it would be impossible for counsel to be so far possessed of the real facts in causes as to be able to give safe counsel or to render proper assistance to the court in presenting them. This is a rule of policy established, partly no doubt for the protection of the client; but largely for the protection of justice and the convenience of its administration. And the same is true in regard to the inviolability of the secrets of the grand-jury room. It is a rule of state policy, and one which, at present, has no great importance attached to it, certainly not in free governments and quiet times. But even in such cases, no one could fairly claim that such message could be withheld from the state, in the prosecution of crime, or from the courts in the pursuit of truth. There is in many relations a duty to keep secrets. That exists between all owners of business and those employed in its prosecution. There will always be many secrets in business, which it is lawful and proper for the owner to keep. If they pertain to the manufacture of articles offered for sale, they are often of great value, and the law will protect them and not allow one who comes by them in a confidential manner to make any improper use of them: Peabody v. Norfolk, 98 Mass, 452. And there is an imperfect or honorary duty upon all subordinate members of a private household or family, or of any office or place of business, whatever, not to divulge anything coming within their knowledge, to the detriment of those with whom they are associated. And even in courts of But the rule, in regard to the inviolability of correspondence by telegraph, is one mainly resting upon an honorary understanding between the companies or their servants and their employees. It is not in any proper sense a perfect justice such confidential matters will or legal duty or obligation. It certainly could not be made the basis of an action in court, that the operators on a telegraph line had made the messages public, unless some pecuniary loss ensued to the parties sending or receiving the same. And we should not be prepared to say, that even in case of actual loss by such exposure of the contents of messages by telegraph, the company would incur any pecuniary liability, upon the ground of general implied duty to keep such messages secret. We doubt whether any such general duty attaches to the undertaking of the company consequent upon a message being left for transmission in the general way, where nothing in particular is said in that respect and no statutory duty exists. Possibly where a special request is made, and a special undertaking to keep secret is assumed, an action might lie for breach of the undertaking and consequent loss. not be drawn from witnesses unless to answer some substantial requirement, or necessity of justice. But where such an exigency does arise, of which the court must judge, there is no such inviolability in any of these obligations to secrecy as will shield a witness from giving testimony. And the duty of a telegraph operator cannot be regarded as of an essentially different character. It is one resting upon custom, or contract, more than any thing else, and while it is very proper that it should protect correspondence from all impertinent and meddling curiosity, and especially from interested persons, in a counter direction, whether such interest be of a pecuniary or any other character, there seems no ground upon which it can be fairly claimed to extend to investigations in courts of justice. justice. In Pennsylvania, by the Act of 14th come material on a trial in a court of April 1851, it is made a misdemeanor And by subsequent statute for any person connected with any line (8th May 1855) it is made the duty of of telegraph to use or make known telegraph companies to preserve the the contents of a despatch without the originals of all messages (other than consent or direction either of the party those intended for publication) for at sending or the party receiving it. In least three years, and to produce them Henisler v. Freedman, 2 Parsons 274, it in evidence when properly subpoenaed. was held that this act did not apply to I. F. R. cases where such disclosure should be United States District Court, District of Rhode Island. A service of a libel in a proceeding in personam on a maritime contract, against a citizen of another district by attachment of his property, is a good service and the court obtains jurisdiction. A defendant does not waive his right to object to the jurisdiction of the court in an admiralty proceeding by filing a stipulation for costs and to abide the decree of the court, &c., under Rule 4 in Admiralty. THIS was a libel in admiralty by Manchester et al., citizens of the district of Rhode Island, against Hotchkiss, a citizen of the district of Connecticut. The marshal returned that for want of the body of the within-named George Hotchkiss, to be by him found within this district, he had on March 8th 1871, attached all the right, title, and interest that the said George Hotchkiss had in and to the schooner George Hotchkiss. The respondent on March 10th entered a claim to the schooner, and on the same day he also filed a stipulation for costs, together with a stipulation in conformity with the fourth rule in Admiralty, -whereupon the schooner was surrendered to him, and the attachment dissolved by operation of law. On the return-day of the writ the respondent filed a plea and answer, to which libellants replied. Browne & Vanslyck, for libellants. A. Payne and J. C. Pegram, for respondents. 1 See post p. 383. KNOWLES, D. J.-The respondent in his plea and answer, in the first place avers and insists that the court has no jurisdiction of the cause, because the defendant is not, nor was he at the filing of the libel, a citizen or resident of the district of Rhode Island, and the only service ever made of said libel was by attaching the goods and chattels of the defendant within the district of Rhode Island, the paragraph closing with these words: "Saving and reserving all benefit and advantage from said plea, and if overruled, the said defendant makes answer to said libel, and alleges and articulately propounds," &c., &c. To this the libellants reply, "that the respondent's plea to the jurisdiction of the court ought not to be received and accredited, because, before the offering of said plea, said defendant had submitted himself and the cause to the jurisdiction of the court, by entering into and filing in the clerk's office of the court his stipulation to abide by and perform all the decree of the court in said cause, and had submitted himself and his cause to the jurisdiction of the court by filing an answer in said cause to the merits thereof." And to this the libellants further replying, add that the plea is bad and insufficient in law. In passing upon one of the two questions here presented, it seems necessary to say but little. Conceding that a defendant may waive a personal privilege, and estop himself from denying the jurisdiction of a Court of Admiralty, it still is incumbent on a libellant to show satisfactorily that a waiver was made by the defendant. This is not shown in this case. The filing of a stipulation, in order to release the vessel from attachment, I cannot regard as a waiver of any right or ground of defence to the suit; and as in this "answer and plea," filed on the returnday of the writ, the day when, and not prior to which, he was entitled and bound to appear in court and answer, he sets forth his objections to the jurisdiction, I am constrained to adjudge that objection seasonably presented: The Bee, Ware 332. In neither text book nor reported case do I find aught inconsistent with this ruling. In regard to the other of the two questions, though much might properly be said, were it now for the first time presented for judicial action, little, as it seems to me, needs be said in this connection. That question, it must be agreed, in its last analysis, is simply |