34 S.C. 49 | S.C. | 1891
The opinion of the court was delivered by
At the June term of the Court of General Sessions for Darlington (1888), the defendant, Joseph W. James, and his co-defendants, William Scott and Lewis Williams, were arraigned upon an indictment for the murder of Joseph James, the father of the defendant, on May 8, 1888. The indictment contained three counts : the first charged William Scott, Lewis Williams, Robert Arthur, and the defendant as principals; the second charged Lewis Williams as principal;'and
At the March term, 1890, the case again came on for trial before his honor, Judge Witherspoon. In organizing the jury, C. C. Best was sworn on his voir dire. Among other things, he declared that he was opposed to capital punishment. The judge ruled that he was not an impartial juror and ordered him to stand aside. ' Defendant excepted. One Woodham was called to the book and upon examination on his voir dire, he said that he had expressed an opinion as to the guilt or innocence of the defendant; that he discredited some of the witnesses who were examined on the trial of Williams, and if the same witnesses were sworn again in the trial of James, he would still discredit their evidence. The judge ordered the juror to stand aside, and defendant excepted. J. T. Howie was presented and sworn on his voir dire. He said that from what he had heard about the case, he thought the defendant was guilty ; but he solemnly swore that he could go on the jury and render a fair and impartial verdict according to the law and the evidence. The judge directed the juror to.be presented, and the defendant excepted. The defendant’s peremptory challenges were all exhausted before the panel was completed.
The jury being organized, the trial proceeded, and during its progress several questions arose as to the admissibility of certain testimony, which we will endeavor to consider in connection with the exceptions. Under the charge of the judge, the jury again found the defendant guilty, and he was again sentenced to be hanged on Friday, May 9, 1890. The defendant again appeals
. In making his defence, the defendant called to the stand as a witness, J. J. Ward, who testified as to other points, the object of his visit to Scott in jail, &c. He was then asked to state the account which Scott had given of the killing in that interview. The State objected that the witness could not disclose the professional communications which were made to him by his client. Mr. Ward said that he regarded all the talk he had with Scott on that occasion as matter confidential between them as attorney and client, except in so far as he thought he could use it to his benefit, &c. The judge asked the witness whether he was willing to disclose the communications Scott had made to him, to which he replied that “he was not, unless he was ordered to do so by the Court.” By the Court: “The only point before me now is, can an attorney be compelled to disclose a communication between himself and his client ? That is the point before me, and no court has, as I understand, gone to that extent; at least, no decision has been brought to my attention. I decline to compel the attorney, Mr. Ward, to disclose the communications between himself and Scott at the time indicated.”
Was that error? It seems to us manifest that Mr. Ward, the attorney, knew nothing about the facts of the case as original matter, and was called only for the purpose of contradieting Scott. But without regarding this circumstance, the rule of evidence which holds as inviolable professional communications between attorney and client, is one of the most important, and in all forums must be maintained in all its integrity. Under the head of “Evidence excluded from public policy,” Mr. Greenleaf says: “The rule is clear and well settled that the confidential counsellor, solicitor,.or attorney of the party cannot be compelled to disclose papers delivered or communications made to him, or letters or entries made by him in that capacity. * * * The foundation of this rule is not on account of any particular importance which the law attributes to the business of legal professors, or any particular disposition to afford them protection ; but it is out of regard to the interest of justice which cannot 'be upholden, and to the administration of justice, which cannot go on without the aid
But while the existence and importance of the rule are admitted, it is contended that the object of the rule was not to protect the attorney, but the client, who has the right to waive the protection given, and if he chooses to do so, the attorney is bound to make full disclosure. We incliné to think that this unqualified view is not entirely consistent with the universally received doctrine that the rule is founded upon a wise public policy, reaching beyond the protection of the particular parties in the case and for the good of society, requiring that as to such communications the mouth of the attorney should be forever sealed. But if we assume that Scott had the right to waive his protection against disclosure by his attorney, did he do so ? In section 500 of Wharton’s Criminal Evidence, it is said that “while the privilege may be waived by the client, the evidence of the waiver must be distinct and unequiuacal.” There was certainly no express waiver made by Scott. On the contrary, it is urged that by going on the stand himself, when called as an ordinary witness, he thereby “waived” his right of protection, not only as to himself, but also so far as his attorney was concerned. We do not see how that can be considered as “unequivocal” evidence of consent. “The fact that the client, being a party, testifies in his own behalf, is generally held not to be such a waiver of his privilege as to compel him to disclose such communications. But in Massachusetts it has been held that the party, if he takes the stand, waives the privilege so far as concerns himself and must testify, but he may object to having his counsel testify to such, even though he puts him on the stand himself.” See Greenl. Evid., § 238, and notes; Montgomery v. Pickering, 116 Mass., 227 ; Weeks on Attorneys, § 117. We do not think there was error in declining to compel Mr. Ward, the attorney, to disclose
The defendant, after an able and indefatigable defence, has been convicted the second time of the horrible crime with which he was charged. We are unable to discover in the record any such error of law as entitles him to a second trial, and therefore
The judgment of this court is, that the judgment of the Circuit Court be affirmed, and the case remanded to the Circuit Court for the purpose of enabling that court to assign a new day for the execution of the sentence heretofore pronounced.