39 Neb. 529 | Neb. | 1894
This is a petition in error to review a judgment of the district court of Lancaster county whereby the plaintiff in .error was convicted of the crime of burglary. He is charged in the information with feloniously breaking and entering a stable, the property of Charles O. Davis, with intent to steal six chickens of the value of $3. The only direct evidence of the guilt of the accused is the testimony of Charles Smith, an alleged accomplice, who had been convicted of the same offense and was at the time serving a term in the penitentiary. Said witness having testified that the accused was present and participated in the burglary, it was sought to impeach him by showing that he had previously made statements fully exonerating the accused from complicity in the crime charged. Eor that purpose the following affidavit was offered in evidence, its execution having been admitted by said witness:
“State op Nebraska, 1 Lancaster County, j
“Charles Smith, being duly sworn, on oath says he is one of the defendants in the above entitled case; that his co-defendant, Rupert W. Brady, was occupying a room in the house affiant was stopping at at the time of the alleged burglary and larceny for which affiant and his said co-defendant were tried at the May, 1893, term of the district court; but that at the time affiant and his said co-defendant, Rupert W. Brady, had no business relations at all. Affiant further says that said Rupert W. Brady had no con*531 nection with the alleged burglary and larceny of Chas. O. Davis’ hen house on the night of March 31,1893, wherein it is charged that the barn and stable of said Chas. O. Davis was forcibly broken into and entered and six Plymouth Rock chickens stolen, taken, and carried away; that said breaking and entering, whatever was done on that night in the way of entering into the structure that said Chas. O. Davis’ chickens were in, and the taking of said chickens was done by affiant alone without the assistance or advice or the knowledge, so far as affiant knows, of said Rupert W. Brady; and affiant says said Rupert W. Brady had no financial interest in, or benefit from, said burglary and larceny upon the premises of said Charles O. Davis on said night of March 31, 1893, and that whatever has heretofore been said by affiant in any way implicating said Rupert W. Brady in said burglary and larceny was done at a time when there was a misunderstanding and ill-feeling between this affiant and said Rupert W. Brady, and said charges were made by this affiant to get revenge, and for mere spite work, upon the part of this affiant, and was wholly without foundation in fact, and this affiant is now ready to make amends, as far as affiant now can, for the wrong done an innocent person.
“Charles Smith.
“Subscribed in my presence and sworn to before me, this 29th day of June, A. D. 1893. R. D. Stearns,
“ Notary Public.”
The above affidavit was excluded on the objection of the state, as was also a verbal admission to the same effect made to Mr. Stearns, attorney for the accused. The ground upon which this evidence was excluded is that the admissions offered were made at a time when the relation of attorney and client existed between Mr. Stearns and the witness Smith, and are therefore privileged communications. The only evidence which it is claimed sustains that conclusion is the testimony of Mr. Stearns, from which it appears
Reversed.