The Federal Reporter with Key-Number Annotations, Volume 272: Cases Argued and Determined in the Circuit Courts of Appeals and District Courts of the United States and the Court of Appeals in the District of Columbia, June-August, 1921. Page: 30
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272 FEDERAL REPORTER
fice of the clerk of the District Court as a part of the official record
of the coroner's report. The defendant also introduced in evidence
the record of certain questions propounded to the plaintiff at the in-
quest, and her answers thereto. This testimony related to the iden-
tification of the envelope, the money contained therein, and certain
statements of the deceased to the plaintiff.
The defendant having rested, the plaintiff testified in her own be-
half concerning statements made by the deceased to her. She testified
that on the morning of the day in which he was shot, he had said that
he would go down town "and get the gun and some shirts, and get the
money that he had coming." She testified further that she had asked
him to get the gun. Objection was interposed to evidence of oral
communications between the husband and wife, on the ground that
under the Montana statutes the plaintiff was forbidden to testify to
the same by clause 4 of section 7891, as amended by the act of the
Legislature of 1913 (Laws 1913, c. 41), and section 7892. The first
of these statutory provisions provides:
"The following persons cannot be witnesses: * * * (4) Parties or as-
signors of parties to an action or proceeding, or persons in whose behalf an
action or proceeding is prosecuted against any person or corporation, as to
the facts of direct transactions or oral communication between the proposed
witness and the deceased agent, of such person or corporation, and between
such proposed witness and any deceased officer of such corporation."
The second provides as follows:
"There are particular relations in which it is the policy of the law to en-
courage confidence and to preserve it inviolate; therefore, a person cannot be
examined as a witness in the following cases: (1) A husband cannot be
examined for or against his wife, without her consent; nor a wife for or against
her husband without his consent; nor can either, during the marriage or
afterward, be, without the consent of the other, examined as to any communica-
tion made by one to the other during the marriage; but this exception dogs
not apply to a civil action or proceeding by one against the other, nor to a
criminal action or proceeding for a crime committed by one against the other "
 We agree with the court below that the statute first mentioned
had no application to the case. The witness was not asked to detail
transactions or oral communications that she had had with a deceased
party to the action or with the deceased agent of such person or cor-
poration, or deceased officer of such corporation. As to section 7892,
the court below ruled that inasmuch as the defendant had, by proving
a portion of the coroner's record, introduced some testimony as to
what had taken place between the plaintiff and the deceased, it had
waived its right to invoke the statute. Thereupon the plaintiff testi-
fied that she had asked her husband to get the gun because some one
had broken in the back door, and some one was around the house that
night, and that he had promised to get it. Subject to the same objec-
tion, the plaintiff testified that her husband told her, after he was shot,
that he had sold his minm stock in consequence of their intention to
buy a house nearer to town. She further testified
"He told me, 'I bought that gun, and it shot me twice,' and he told me not
to touch it; that it shot repeatedly; that it might shoot me He told me he
did not mean to shoot himself, and said. Why would an anE(ident happen like
this?' and said that he did not think he was shot seriously."
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The Federal Reporter with Key-Number Annotations, Volume 272: Cases Argued and Determined in the Circuit Courts of Appeals and District Courts of the United States and the Court of Appeals in the District of Columbia, June-August, 1921., legislative document, 1921; Saint Paul, Minnesota. (digital.library.unt.edu/ark:/67531/metadc38843/m1/52/: accessed December 17, 2017), University of North Texas Libraries, Digital Library, digital.library.unt.edu; crediting UNT Libraries Government Documents Department.