192 Ill. 170 | Ill. | 1901
delivered the opinion of the court:
In addition to other evidence, the substance of which is contained in the foregoing statement of the case, it appeared that plaintiff in error, on the morning after the killing of his brother and while on the train on his way to Paris, had a conversation with Alfred Tanner, a duly licensed attorney at law of this State. Tanner testified that plaintiff in error asked him if he was a lawyer, and that he (Tanner) told him that he was, and that he then asked him (Tanner) if he was the one who had been State’s attorney of Edgar county, and on receiving an affirmative reply said to him that he wanted to ask his advice, and stated that he had had trouble with his brother and had killed him. Tanner further testified that plaintiff in er- ■ ror said he was on his way to Paris to see Henry Tanner, witness’ brother, who was a practicing attorney, and that he thought at first that witness was Henry Tanner until witness told him otherwise; that witness advised him not to talk to any one but to go and see his attorney; that wi tness understood that plaintiff in error was asking him for legal advice, but that he did not employ him or pay or promise to pay him anything, and that he did nothing more than to give him the advice stated and go with plaintiff in error to the office of Henry Tanner, with whom he also had his office and for whom he sometimes transacted legal business, and not finding' Henry Tanner in the office he directed plaintiff in error to Henry Tanner’s house. Counsel having examined the witness on the voir dire and elicited the facts and circumstances above stated, objected to the testimony of the witness as to any communication to him by plaintiff in error in reference to the killing, on the ground that it was privileged. The objection was overruled and the witness testified, as stated, to the admission by plaintiff in error that he had had trouble with his brother and had killed him. Exception was taken to the ruling of the court, and this ruling is, as counsel say, the chief error relied on for a reversal of the judgment.
We think it wholly unnecessary to consider whether the relation of attorney and client existed or not between plaintiff in error and Alfred Tanner when the admission was made, or whether, for any reason, it was error to permit said Tanner to testify to such admission or communication, for the reason that plaintiff in error, after the testimony was given and when a witness in his own behalf, made the same admission of the killing and testified before the jury to the same matter. Even if erroneous and harmful when given, Tanner’s testimony was rendered wholly harmless by the testimony of defendant, in which he made the same admissions to the jury that he had made to Tanner. After defendant’s testimony was given it was no longer a question in dispute whether he had killed Hutch Knight or not, but only under what circumstances and with what intent he killed him, and Alfred Tanner’s testimony did not bear upon the latter question at all.
But counsel say that by the admission of Tanner’s testimony the defendant was forced to become a witness and to state the facts of the killing. We think this argument is without force, for it certainly remained optional with the defendant to testify or not. If he considered that the killing by him was not sufficiently proved by evidence other than Tanner’s testimony to call for any explanation on his part, he could have remained off the witness stand, and, if convicted, assigned the admission of Tanner’s testimony as .error, and availed himself of any advantage which the decision of that question would have given him. But it seems too clear for argument that he could not go on the stand as a witness in his own behalf and testify to the same fact that he had communicated to Tanner, and then, after conviction, assign as error the admission of Tanner’s testimony of such fact.
A general complaint is made of the rulings of the court in giving and refusing instructions, but no specific error is pointed out, and after a careful examination of them we have been unable to discover any error in this regard.
It is also claimed that the verdict and judgment were against the weight of the evidence, and that the court below erred in not sustaining the motion for a new trial on this ground. We have given the record a careful examination, and are of the opinion that the evidence was sufficient to justify the jury in their finding. They and the court below saw and heard the witnesses testify and were better able to test their credibility than we. We cannot disturb the verdict on the evidence before us.
The judgment must be affirmed.
Judgment affirmed.
