State v. Dawson

90 Mo. 149 | Mo. | 1886

Lead Opinion

Henry, C. J. —

Defendants were indicted for burglary and larceny in the Jasper circuit court at its December term, 1885. The charge in the indictment is, that on, etc., at the county of Jasper (omitting to aver in what state the offence was committed).

The caption is:

“ State of Missouri,

“County of Jasper. } ss"

On a trial defendants were found guilty and sentenced to imprisonment in the penitentiary for a term of four years each, from which they have prosecuted their appeal. The venue was sufficiently alleged. Sec. T813 R. S. provides that: “It shall not be necessary to state any venue in the body of the indictment or information; but the county or other jurisdiction named in the margin thereof shall be taken to be the venue of all the facts stated in the body of the same.”

The grand jury found the indictment on the eleventh day of December, 1885. On the same day the defendants were arraigned and pleaded not guilty. The seventeenth day of December was set for the trial of the cause. On the fourteenth day of December defendants had a subpoena issued and directed to the sheriff of Jackson county for J. S. Barnhill, a witness for defendants, in their affidavit stating that they had it issued as soon as they ascertained where the said witness was to be found, and also stating the facts they expected to prove by him, which, if true, tended to establish their innocence of the charge. The prosecuting attorney admitted that, if present, Barnhill would testify to the facts alleged in the affidavit, and thereupon the court overruled the application for a continuance and compelled defendants to go to trial. The precise question which arises upon the above facts was not passed upon in either of the cases cited and relied upon by the Attorney General. In the Jennings case the witnesses had been subpoenaed, but on account of sickness were unable to attend. No attachment was asked, and if it had been “would have been ineffectual to secure their attendance.” Upon the admission made by the state that the absent witnesses would testify as alleged in the affidavit, the continuance was refused. State v. Jennings, 81 Mo. 190.

So in the case of State v. Henson, 81 Mo. 385, the subpoenas were returned not served. In State v. Hide-man, 75 Mo. 416, the question under consideration was decided, adversely to the state. There the court said, Hough, J., delivering the opinion: “Process for the defendant’s witnesses having been seasonably issued, we think the circuit court erred in compelling him to go to-trial before the same was returned, there being nothing in the application for a continuance, or in the record before us, indicating that the subpoenas had not been issued in good faith, or that the same could not be-served.” The argument made by the learned judge to-sustain that view is unanswerable and I could not add to its force.

The court also erred in permitting Mr. French, defendants’ attorney, to testify as to the kind of money defendants paid him as a retainer, viz: forty-five dollars in silver and five dollars in gold. They were charged with stealing among other things, one hundred and sixty dollars “ of current silver coin of the United States.” Our statute, which provides that an attorney shall not be competent to testify “concerning any communication made to him by his client in that relation or his advice thereon without the consent of such client,” is but declaratory of the common law. It was not designed to, nor does it, narrow the common law privilege. Norat common law was the privilege confined to verbal or written communications made by the client to his attorney, but extended as well to information communicated by the client to the attorney by other means.

In the case of Robson v. Kemp, 5 Espenasse, 56, Lord Ellenborough said: “ This is a transaction with ¿ which the party has only become acquainted from being/ employed as an attorney. The act cannot be stripped on the confidence and communication as an attorney, the/ witness being then acting in that character. One sensei is privileged as well as another. He cannot be said to ' be privileged as to what he hears, but not as to what he sees, where the knowledge acquired as to both has been from his situation as an attorney.” ^

“ The foundation of this rule is not on account of any particular importance which the law attributes to the business of the legal professors, or any particular disposition to afford them protection. * * * But it is out of regard to the interests of justice which cannot be upholden, and to the administration of justice which cannot go on without the aid of men skilled in jurisprudence, in the practice of the courts and in matters affecting rights and obligations which form the subject of all judicial proceedings.” Lord Brougham in Greenaugh v. Gaskell, 1 Myl. &. K. 103.

Mr. Greenleaf, in his work on evidence, says that: “The great object of the rule seems plainly to require that the entire professional intercourse between client and attorney, whatever it may have consisted in, should be protected by profound secrecy.” 1 vol., sec. 240.

“ If such communications are not protected no man would dare consult a professional adviser with a view to his defence, or to the enforcement of his rights, and no man could safely come into court, either to obtain redress or to defend himself.” Lord Brougham in Bolton v. The Corporation of Liverpool.

The reason of the rule protects a client from a disclosure by his attorney, not only of what he has communicated to his attorney orally or in writing, but of any information derived by the attorney from being employed as such, any information which he has derived from his client, whether by words, signs or acts'; and to restrict the privilege to oral or written communications would make the rule infinitely narrower than the reason upon which it is based.

O’ Sherrill was permitted to testify that the morning after the burglary two of the defendants exchanged thirty-five copper cents with him for other money. The relevancy of this testimony is not perceived. They were not charged with having stolen any copper coin. It is also stated in the brief of defendants’ counsel that the sheriff was permitted to testify that he had taken three watches from the defendants, which, were exhibited to the jury, but we have searched the record in vain to find that any such testimony was adduced. All that we find on the subject is, that the sheriff testified that he “took about seventy-seven dollars from the three in silver.” “Witness shows money and property in presence of jury which he took from defendants.” What that property was nowhere appears, nor was any objection or exception taken to the admission of the testimony.

We have given the record a careful examination and find no errors of magnitude sufficient to warrant a reversal of the judgment except those above noted, for which it is reversed and the-cause remanded.

All concur.

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Concurrence Opinion

Sherwood, J.,

Concurring. — I concur in reversing the j udgment, but not in all that is said in the above opinion, and I may hereafter add some additional observations.