Page:Harvard Law Review Volume 10.djvu/552

526 526 HARVARD LAW REVIEW. Evidence — Presumption of Innocence. — Held, a charge to the jury in a criminal case, that the defendant is presumed to be innocent of all the charges against him until he is proven guilty and that this presumption remains with him until his guilt is proved beyond a reasonable doubt, is correct, and the judge need not tell the jury that the presumption is to be regarded as matter of evidence. Agnew v. l/jiited States, ij Sup. Ct. Rep. 235. See Notes. Evidence — Res Judicata. — Held, where the fundamental inquiry in a suit in equity was whether plaintiff or defendant owned certain bonds, and the bill was dismissed, but the decree did not show the grounds of dismissal, the presumption is that the issue was disposed of on its merits, and the question of ownership is therefore res adjudicata. Marston v. Evans, 36 Atl. Rep. 258 (Md.). The intention of the defendant was, that the opinion of the judge dismissing the bill should be consulted to discover whether the decree was dismissed on the merits of the issue or for lack of jurisdiction. But if this were allowed the court would often have to pass upon all the various shades of expression used by the decreeing judge, an inquiry which would be perplexing and unsatisfactory. The decision is barred on the broad ground that it is for the interest of the public that there should be an end of litigation. If the decree was given for lack of jurisdiction, it should have been qualified by the words "without prejudice." In the absence of such words it should be construed as what it purports to be, a decree on the merits of the issue. Dtirant v. Essex Co., 7 Wall. 107. Evidence — Violation of Witness's Privilege — New Trial. — A witness was erroneously compelled to testify, in spite of his claim of privilege on the ground that his evidence would tend to incriminate him. Held, that this is not ground for exception. Samuel v. The People, 45 N. E. Rep. 728 (111.). This is supported by Marston v. Downes, i A. & E. 31, Regina v. Kinglake, ii Cox C. C. 499, and the language of Cloyesv. Thayer, 3 Hill, 564, Clark v. Reese, 35 Cal. 89, and State v. Foster, 23 N. H. 348. It is true, as these decisions reason, that the privilege is purely for the benefit of the witness, and if he waives it neither party can complain. On the other hand, as the evidence here has been brought into the case in violation of a rule of law, it is hard to see how it can be "held that the verdict was supported by legal evidence." Shaw, C. J., in Com. v. Kimball, 24 Pick. 369, cited with approval in Com. v. Shaw, 4 Cush. 594, and State v. Hopkins, 23 Wis. 319. Persons — Husband and Wife — Wife's Power to Acquire a Domicil. — A husband, domiciled in Massachusetts, abandoned his wife ; the wife removed to New Hampshire intending to make her home in that State. Held, the wife acquired a New Hampshire domicil. Shute v. Sargent, 36 Atl. Rep. 282 (N. H.). One who is " under the power and authority of another person has no right to choose a domicil." Story, Conflict of Laws, § 46. On marriage the wife, at common law, came under the control of the husband ; she acquired his domicil. If the husband acquired a new domicil, his new domicil became that of the wife. The wife during coverture could not by her own act acquire a new domicil. It is in England an open question whether, after a judicial separation, the wife can acquire a domicil apart from that of her husband. Dolphin v. Robins, 7 H. L. Cas. 390, at p. 420. In this country a much more liberal rule seems to prevail. It is said that the Married Women's Acts establishing the wife's right to her property free from the control of her husband, and giving to a married woman the right to contract, have changed, at least to some extent, the strict common law rule that the wife cannot acquire a domicil by her own act. Matter of Florajice, 54 Hun, 328. The reason ad- vanced does not inevitably lead to the result reached. Practice — New Trial — Newly Discovered Evidence. — In an action for personal injuries the plaintiff had a verdict. The defendant moved for a new trial on the ground of newly discovered evidence; (i) impeaching the plaintiff's witnesses, (2) clearly showing that plaintiff when bsfore the jury simulated his physical condition to be worse than in fact it was. Held, the newly discovered evidence on the first point was not ground for a new trial, but that on the second point entitled defendant to a new trial. Corley v. R. R. Co., 42 N. Y. Supp. 941. The case is sound on both points. The successful party's fraud in keeping away the witnesses of the other party, or in procuring false testimony to be given, has always been good ground for a new trial. 2 Tidd's Practice, 937. Here the plaintiff's pretended injuries were false evidence calculated to mislead the jury in estimating damages. In the absence of misconduct on the part of the successful litigant the old rule seems to have been that newly discovered evidence showing one of the successful