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.