*1 Secretary Manufacturing of State. Co. v. briefs, but very elaborate prepared have Counsel controlling. case The cited of the authorities none this in impression of first presented is one as here bought held had been If bonds State. these they claimed would be State, not think it dowe tax. privilege subject would not to though tax, the bonds plaintiff escape the Can the keeping them buying and assets, by part are of its bonds clear think it outside the We State? within State capital property or outside exempt them meaning statute, will which paying privilege fee. denied, mandamus application for the writ of with costs the defendant. Steere, Sharpe, Bird,
Clark, McDonald, J.,C. Fellows, JJ., Wiest, concurred.
PEOPLE v. DOE. re
In NELSON. Contempt—Attobney Juby. Witnesses — and Client —Gband judge acting On certiorari to review an order of a circuit jury 196, 1917, aas one-man under Act No. Pub. Acts by 1921, committing amended plaintiff, Act No. Pub. Acts prison attorney, testify- an ing falsely regard to matters claimed have been client, raising question him disclosed to a after privilege, the order is affirmed court. divided Berrien; Dingeman Certiorari (Harry J.), J., presiding. (Docket Submitted October 1923. No.82.) January 7, 1924. Decided *2 adjudged M. guilty Nelson was
Walter contempt of court, and of sentenced to days confinement for 30 in county jail. by equally the Affirmed an divided court. Dilley, Dilley {Harry Diehl, & counsel), Souter L. of appellant. for Dougherty, Attorney
Andrew B. General, and Homer Quay, Attorney General, H. Assistant appellee. for A writ J. of certiorari was issued in this Moore, proceedings to Hairy case review the had before Hon. Dingeman, sitting judge, J. circuit as a one-man grand jury proceeding in a John Doe under No. Act 196, 1917, Pub. Acts as amended Act No. Pub. Acts (Comp. Supp. [2]), Laws § pending county sentencing him in before Berrien plaintiff, Nelson, county jail Walter M. to for 30 the days. following
In the return the writ the statement occurs: “Respondent being further shows that evident
the court petitioner’s that he had own deliberately falsified and that he had been evasive and inquiry throughout designed his conduct was to petitioner period justice, respondent obstruct therefore committed county jail county at Berrien a days of court.” of following
The plaintiff contentions are made argued by counsel: (1) That the statute is unconstitutional which grand jury. creates the one-man (2) contempt. That there was no (3) finding respondent That relator falsi- erred testimony. fied his necessary. ;(4) jury trial That a Doe. jury sitting grand could as a respondent (5) That contempt. punish for disposition the second a of the case view of our In unnecessary to dis- make it will contentions these of propositions. the other cuss of graduate department the law plaintiff a
The good charge a University Michigan has had so-called, litigation House of David with the deal Harbor, members. Some or some of its Benton at per- against plaintiff other litigation It said defendants. named as sons pending officials when of these cases more than ten inquiry grand jury into a have the State decided at Benton Harbor. condition subpoena attended as plaintiff in obedience to following Early in his examination a witness. *3 occurred: Nelson, you “Q. conference, now, Mr. Well, at that lady young you not, a whose did that was there stated name that somewhere I think was don’t disclosed time, furnish information at that that could Ohio in upon Purnell against a warrant to base criminal which having knowledge a child female under for the carnal years age of ? sixteen No, that I said that. “A. I don’t know you “Q. you express opinion that Didn’t give girl information? that could that you you asking Well, are now for in- now see “A. mine, I have a client of and definite about formation All I know this that about client. instructions that attorney relation of and client I learned in the obliged privilege any- client, plead as to and I am to thing I about her. know yours? “Q. you Well, was a client of did state she you any pending for her? Have suit you Now, one mean. “A. I don’t know which The girls mind, I had that I had those mind evening conversation, all don’t that remember —I any I persons represent that have but the knowl- clients, edge you pleadings such refer are either drafted for all them.” filed or again quote:
We “Q. you this, your Let me ask Mr. Nelson: What is wishing reason not to disclose the name of the you girl thought possibly in Ohio that would furnish desire, we upon information that this information statutory charge to base a within which limitations the statute of Benjamin against Purnell? Well, reasons, are a lot I “A. and would — really willing give I wouldn’t want be you them civil them to you because —I can some of them. One of is, lawyer represent her as her she has a claim. “Q. “A. you say that One could furnish the information?
Yes.” officials were not content with The this statement required Mr. Nelson and him to attend the sessions grand jury upon at of the least three days, different and to submit to an examination that covers more than pages printed ought record. It to be stated Mr. Nelson in fairness to that he any claims that inconsistency apparent in his was due to that either the examiner the fact did not understand or him he did understand examiner. guilty Nelson Whether Mr. of contempt of upon depend will whether his court answers various inquiries attorney to him general’s directed de- judge sitting partment, grand as a jury, privileged they because profession- came him ally from his client or clients. question privileged communication has had the attention of *4 many times. Some of the court cases are Alderman (69 People, 4 414 Riley Mich. Am. Dec. 321); v. v. Conner, 497; People Hillhouse, v. 79 Mich. 80 Mich. Railway Co., 414; Erickson v. 93 Mich. 580; Lorimer Mich, Lorimer, p. 637, cited; 124 at and cases v. Ford McLane, 371; Sharp, 131 Mich. Mack v. 138 v. Mich. Mich, 109); People (5 Dahrooge, Ann. v. Cas. 448 173 Dick, 173. Devich Mich. 375; v. 177 9 People v. Doe. Dahrooge, supra, said In Justice Brooke v. part: in frequently that confidential held has “This court attorney are not and client
communications between to be revealed at Railway Co., any v. time. Erickson (5 Ann. Sharp, Mich. 414; Mich. Mack v. See, Lorimer, Mich. 63Í. 109); Lorimer v. Cas. Cyc. Lorimer, supra; 40 also, in Lorimer v. cases cited in note 81.” p. cited and cases s^eere said Dick, supra, Justice Chief In Devich part: in defendant to allow “Exception to the court’s refusal plaintiff contradictory claims of previous to show sustaining objections to rulings in made relates to _ on questions plaintiff cross-examination certain touching who asked counsel, between defendant’s communications plaintiff at conducting examination, and action, when prior of this to the commencement a time office, to visited said counsel’s plaintiff and his wife engage his regard and to him in to this case consult the court stated to professional that services. Counsel facts, which plaintiff then made a statement the case listened; to take that he there declined retained; proposed to that he show and was ‘contradictory Ob- plaintiff then made statements.’ inquiry jection on was sustained this line ground We rejected. privileged. were communications such rightly opinion that are of such clearly plaintiff appeared that visited It brought to action was counsel at his office before this consult him professionally retain his services. made, and which counsel The communications then during sought disclose, a conference for made attorney establishing purpose the and the relation Tentatively very and until client in this case. case, relation did take the such counsel declined to exist. to matters related The communication professional of counsel were desired
which the services and asked. “ respect person ‘If a to bis affairs or business troubles
any bind, attorney professional capacity, consults witb an in bis *5 Repoets. Michigan 226
10
obtaining professional
advice or assistance
the view
with
acquiesces.
voluntarily permits
attorney
or
in such
the
employment
regarded
professional
consultation,
must be
the
then
by
established,
or
made
the client
the communication
attorney
circumstances,
given
is
under such
the
advice
* * *
attorney
consultation
privileged.
It is the
between
so,
privileged and must ever remain
which
the client
preliminary
attorney
hearing
though
state-
after
even
cause,
ment,
retained further
in the
or the
to be
decline
should
attorney’s advice,
hearing
client,
should decline to
after
employ
Ev.
Enc. of
228.
him.’
10
further
Hall,
also,
(Mass.)
(22
12 Pick.
“See,
89
Foster v.
Tally,
(15
Fellows, The ileged involved in this case. is communications refusing not committed for plaintiff in certiorari answering for questions committed to answer but by evasively. As stated Justice questions falsely and Judge Dingeman to this writ the return Moore, following: contains the being to “Respondent it evident further shows testimony that he had petitioner’s
the court from own deliberately evasive and that he had been falsified designed throughout inquiry was that his conduct justice, respondent therefore committed obstruct to. jail county petitioner period county for a at Berrien days contempt for of court.” of 30 That the commitment was this reason was made judge plaintiff clear circuit counsel He certiorari when he be fixed. then asked bail said: refusing commitment for “The is not a Court: This were, questions, to not If it I would answer Mr. Souter. give you fix a chance to re- hesitate to bail and my
view of court for deliberate commitment for action. This is a falsifying and conduct unbe- coming an I don’t feel officer of this court. under ought anything I further the circumstances that to do say, than I for I a commitment have done. As if it were refusing questions Mr. Nelson to answer some glad privilege, you had an claimed would be opportunity go Supreme Court.” taken return must be as true. In this cer- proceeding tiorari we are not the the facts. triers of weigh testimony. may We do We duty our to examine the if there is to see
any support finding. evidence to If there is we finding accepted can not measure it. The must be This true. settled law. Moore,
As stated Justice the examination of Mr. quote Nelson was extended and I shall but ex- few cerpts from it to demonstrate that there was evidence finding. to sustain the I shall first take some ex- cerpts testimony upon from his the first examination: “Q. you got you by Do that I telephone remember you you just you said that arrived and that hadn’t had lunch? Well, right. “A. that is about “Q. your And I went over to office and waited until *7 you lunch, you returned from and asked with reference young lady you that had Ohio, told us lived in requested you and accompany me, you that would, if young and see lady? this this —interview Yes, substantially right, “A. this is way the I re- * * * member it now. “Q. feel, Nelson, You Mr. that on account of these people being your clients, you that should not disclose to us parties you the names of the that know we are get liable to the information from? Yes, “A. I feel obligation. under that absolute I asked them the last time I separately saw each one they willing testify if they if would come over thing. here and aid this I they told them if would do this, certainly I put anything wouldn’t way, in their and there willing wasn’t a one of them it, to do and everyone of them definitely just instructed me as I am acting now of their own volition. As far Ias am concerned, I good would many be relieved of a things get if I thing my could the off hands. They “The Court: clients, are not all they? witnesses, you “A. The want, only the ones ones any good that are to the State in this case are clients. * * * only girls. There are three “Q. you give Will us the last known address of the Bamford sisters? Spruce “A. street is the last one I know. “Q. Both? Yes, “A. because Rubel lived there and Mrs. Reed came Pennsylvania there. Doe.
.1924] girl and name give us you “Q. Will in Ohio? lived girl that town, that. do I can’t “A. name? her you us “Q. Couldn’t All you. I told time at it know No, I didn’t “A. that, Mr. you told I had moved. was, she I knew my hand had I get her. go and Quay, that I couldn’t you office, and my down just it laid bag I you that go. I told up pick me to asked it.” couldn’t do gave the time last appeared the Mr. Nelson When following testimony: interrogated you were “Q. I time believe At that lived who young witness, aor me as to lady,_ might furnish Ohio, that in the State somewhere could warrant upon a criminal which evidence crime against Benjamin Purnell predicated lady re- young you that rape, ferred that? I think stated right about IAm yours. a client to was young lady I think we reference Well, the “A. you that client, to me but it seems
to have and is a badly up. pretty mixed I got business this Ohio I here before what was appreciate did not when now, your I think I know mind the time. at straighten any impression you ought to out I think I girl girl score, have on that because —the girl to, referred had in Governor Groesbeck *8 thought girl you that I had in mind here mind and the girl Reed, I Ruth and that was the had in mind. was “Q. girls? Reed, Bamford Ruth one of the girls. you Yes, “A. one of the Bamford If have got why impression girl, that there is an additional impression, that and I did not mistaken you girls realize had the idea there were three instead just two; you of conversation with if will remember because Groesbeck, we fixed the had reference all the Governor age girl and described the I time to Ruth Reed. “Q. Well— (Continuing) girl “A. Not an additional at all.” further Considerable examination was had and Mr. challenged Nelson’s attention was to his former testi- mony read, following some of was and the occurred: “Q. you persist saying, in Do still in the face of record, portions read, such Ias have and there it, you are others in that pro- when testified in this ceeding girl before with reference to a in Ohio that you girls had in mind one of the Bamford ? Well, say portions you “A. I on I think read that Any
is what I memory. in portions had mind. other I have no “Q. She live in didn’t Ohio? No, say “A. I didn’t mean to she did. “Q. talking your I testimony am about at previous hearing, you girl when referred to the in girl Ohio, when Ohio, referred to a in you we whether persist saying you in still had in mind one of the girls? Bamford I “A. had Ruth Reed in mind. “Q. Well, girls? that is one of the Bamford Yes,- way that is the I “A. understand it from what Now, explained read. I has been to the court how that, I up understood because at the time I went I that she understood be taken that afternoon nothing I to Toledo. to do with that. That was my proceeding. stay right said there.” excerpts justify alone I think
These would the trial concluding judge in from Mr. testimony Nelson’s given on the first that girls occasion there were three give testimony incriminating Benjamin who could Purnell, his, all of whom were clients of two of whom girls were the Bamford for whom he had started suit him, and both of whose names were known and the living girl in give. other Ohio whose name could not appearance Upon his last his was that there only girls, not three girls, the two Bamford them, Reed, he had reference to one of Ruth who did temporarily gone not live Ohio but who had to Ohio Manifestly the afternoon he left Detroit. this testi- mony harmony given out on with that the first justified judge concluding examination and the trial plaintiff falsely. in error had testified *9 Doe. the quoted sustain alone excerpts I have these While give it record in the finding is much more opinion will possible support, it is quotation if, further better without understood Mr. Nelson record, is stated. what shows the successfully their clients associate had and his against as understand prosecuted Purnell and a case States in the United David it the Israelite House of Michigan, of for the district district court western amount. for a substantial a decree and had secured Upon the given in the record. The exact sum is gross given testimony hearing of that case girl mem- upon the practiced Purnell immoralities girls, colony. both of the Bamford Each of the bers married, members of the had been whom who were associate colony, through and his Mr. Nelson charging against brought seduction suit Purnell their on file rape. The declarations in cases were were also public; other suits and accessible growing the' House of out of situation at started against Nelson Counter suits were started David. conspiracy and the for slander and and his clients Acting people for the public interest was aroused. quo attorney general war- State, instituted ousting of, ap- asking proceedings for the ranto for, pointment Israelite House of a receiver Berrien David; proceedings in the instituted also 196, county Act Pub. Acts under No. circuit court 395, Pub. Acts amended Act No. Judge [2]). (Comp. Supp. Laws § Wayne presided. Mr. Dingeman of the circuit court only testimony us, but before Nelson’s foregoing made from it facts record the attorney general appear. apparent It is attempting to down and and his run associates on of immoralities claims ascertain the truth to con- part testifies Mr. Nelson Purnell. *10 Michigan Repoets. 226 16 with, attorney general the ferences and his assistants governor present. at one the of which He did attempt not to withhold from them the facts his clients testify witness, could to nor did he do so as a quite freely voluntarily and somewhat in detail testi- they fied to had facts communicated to him. It was give when present asked to their names and addresses professional privilege. that he claimed his And I Judge Dingeman think it should be here that stated require did not present him to such names and addresses; girls the address of the Bamford of 1816 Spruce street a former address. Mr. Nelson’s testimony convincing is pro- that he resented both ceedings attorney general; instituted that for appointment might prejudice of a receiver decree, discovery collection of his and that for the might, found, crime public if indictments were make upon litigation advance the he facts relied conducting. disposition he was And he showed a throughout to treat the his examination scandal of the property, attempts David House of as his trespass upon again it. Time he State insisted that he be left “in control” and that should in- vestigation public officials should be deferred until testimony “in the His on he was clear.” the first examination the effect that there were was to three State; girls, upon aid the clients his who could last but two. examination that While testimony alone was not his inconsistent sufficient perjury (People MeCUntic, v. convict 1917C, 52]; People Kennedy, R. A. v. [L. Mich. 1), it was sufficient to finding Mich. authorize a falsely (Lonier Savings Bank, testified that v. 253) 153 Mich. that such false tended justice. to the obstruction of the due administration of If contempt, contempt, this was it was direct com- court, mitted in the face of the to be dealt with summarily. Doe. unanimous, per- I am the authorities
While
great weight
authority
suaded
is
swearing
Upon
of court.
effect
false
be so held. Courts should not
reason
should
question
proper
trifled
A
answer a
with.
refusal
beyond
so,
If
question contempt.
the refusal
truthfully imports greater
turpitude and
answer
moral
*11
Chamberlayne
should
contempt.
be
likewise
held
1,
on Evidence,
249,
vol.
thus states the rule:
§
possible acts,
antagonistic
“Of
few are so
to the
objects
judicial
of
administration as the intentional
swearing
false
which seeks to baffle the search for
truth,
justice
impossible.
without which
is
Such
swearing
court;
flagrant
dignity
insult
to the
of the
an at-
and the same offense is committed
torney
person
giving
or
procures
other
who
perjured testimony.
matter of the
its
in
subject-
The nature of
may
affect, according
false evidence
importance
consequence,
or
the action of the court
awarding punishment.
swearing
False
to the
disposition
property
position
in a different
stands
important
from more
offense,
matters.
But the
re-
gardless of
properly be dealt with
materiality
given,
may
of the evidence
contempt.”
as a
The rule
supported by
thus announced is
the follow
ing
Ulmer,
authorities:
re
461;
In
208 Fed.
United
Appel,
States v.
495;
211 Fed.
Steiner,
In re
195 Fed.
299;
parte Hudgings,
(39
Ex
249
Sup.
378
U. S.
Ct.
337,
333);
11 A. L. R.
People,
Berkson v.
ful, evasive, prevaricating, or so as in effect to amount to a refusal discovery answer and to called for; or whether fairly ability within his make 226 —Mich.—2. discovery required him; his conduct whether
the was contumacious, questions which innocent or —were required exigency the circuit court to of the case jurisdiction. power to determine is determine. The correctness justice or of the determination open for questions by court is not the circuit these consideration in this is conclusive That determination here. proceeding.” may constituting contempt also the misconduct That prevent punishment for con- be indictable does although punish- take tempt, the court should such imposing in case into consideration in sentence ment 12291). (3 Comp. What of conviction Laws § (2) applies I have to defendant’s contentions said opinion but forth in Mr. set Justice (3) Moore’s (1), (4) (5). shall leaves consideration them in consider the order named. objection constitutionality act
1. The it con- under was held is examination which judges. ob- non-judicial This fers on circuit duties McDonald, Mundy jection the ease answered *12 398), we said: (20 R. where Mich. 444 A. L. cannot, judicial capacity a acted in “That defendant did, did as a think, questioned. he he we be What judge.” circuit en- plaintiff in error that of claim 4. The by a by jury answered a is likewise a trial titled to Chadwick, 109 In re decision of this court. former speaking Grant, In that case Mr.- Mich. Justice 588. court, Tor the said: “Proceedings contempt not criminal causes are for meaning of the of and Constitution the intent
within
the
then the
were,
they
If
of
or
this State.
United States
contempt
be entitled
would
party accused of
provides that
jury
own
trial. Our
Constitution
to a
jurisdiction in all
original
have
‘circuit courts shall
excepted in this Con-
criminal, not
matters,
and
civil
by
Article
law.’
§
prohibited
and not
stitution
v. Doe.
every
prosecu-
that ‘in
criminal
provides
8.
It also
right
speedy
to a
have the
tion the accused shall
28.
by
impartial
jury.’ Article
§
an
public trial
any
a constitu-
of
decision under
are not aware
We
con-
holding
of
that one accused
to
tion similar
ours
that
jury
apparent
trial.
It is
tempt
to a
is entitled
re-
lodged
It is
in the court.
power
this
pugnant
should
should
jury
say that a
propriety to
to all ideas of
committed, or state-
an act
determine whether
if
presence
court or outside
made in the
ment
was
itself,
insulting
degrading
to the court
,The
justice.
course of
to obstruct
the due
tended
nearly
must
uniform
authorities
court
question.
has been the uniform
determine the
Such
practice
tempt
of con-
in
courts of
‘Cases
this State.
by jury,
and the
of court were never triable
of the
many
object
if
power
in
cases
would be defeated
they
contempts
punish
sum-
power
The
were.
marily
equity.’
is incident
to courts of law and
Cooley,
Ed.) 394, note 2. The
(4th
Lim.
Const.
legis-
judicial
lative,
entirely
department
from the
is
distinct
power
exist-
and the Constitution leaves
ing in
court
at the common law.”
as it was
objection
punish
power
for con
5. The
tempt
by Mundy McDonald,
part
is
answered
ques
supra,
it
insisted that
the act in
but
is further
provisions
punishment
contempt in
tion
for
makes
urged
it
to the ex
certain cases and
is
this is
power
punish
any
other cases.
clusion of the
power
punish
The
inherent
in the
is
power.
part
judicial
It
It
court.
is
firmly
in the constitutional
vested
courts
Con
any
judicial power.
stitution
other
as is
exercise
judicial power
That the
all
exercise
away
can not be taken
courts
constitutional
legislature
question
fully
is settled.
con
Judge
Superior Court,
sidered in Nichols v.
*13
See, also,
Chadwick, supra;
Mich. 187.
In re
Carter
780,
Commonwealth,
(32
v.
45
E.
L.
Wood
I think the writ of certiorari should dismissed and the Judge Dingeman order of affirmed. J., JJ.,
Clark, Wiest, C. and Steere concurred Fellows, with J.
HOWTON KEARNS. Ordinary Negligence Negligence Pleading—Recovery Per- — Negligence Although Charged Wilful —Instructions. missible plaintiff may injuries recover action as for an In negligence, although ordinary actionable declaration alone, acts wilful therefore counts on reversible judge, jury, in his for the trial instructions error understand, repeated them use of the “wilful,” only that she could recover word for wilful mis- conduct of defendant. Sanilac; (Watson), Error Beach J. Submitted January 86.) (Docket
October 1923. No. Decided 7, 1924. against
Case Dora Howton John L. Kearns for personal injuries. Judgment for defendant. Plain- brings tiff error. Reversed.