19 Kan. 445 | Kan. | 1877
The opinion of the court was delivered by
The defendant White was charged on information with the offense of bigamy. The first jury impanneled to try the cause could not agree, and were discharged without finding a verdict; and another jury, before which the cause was tried at the same term, rendered a verdict of guilty. Thereupon the defendant was sentenced to the penitentiary for the term of three years, and he now appeals to this court.
I. The serious error alleged is, the action of the court in compelling the defendant to disclose communications between himself and his attorney. Evidence having been admitted concerning a divorce having been granted between the prisoner and his first wife, in the jgtgte of New York, prior to the second marriage, the defendant, testifying in his own behalf was required by the court to answer, on cross-examination, “ if he had not been consulted, or adyised by his counsel in regard to obtaining a copy of such decree.” Objection was duly made to the question on the gro^hd that the communications between counsel and client were privileged; but the court overruled the objection, and in so doing committed material error. The defendant in fully answering the question gave the advice of one of his lawyers to him. The statute provides that an attorney shall be incompetent to testify concerning communications made to him by his client in that - relation, or his advice thereon, without the client’s consent. This statute would be of no utility or benefit, if the client could be compelled, against his consent, to make such disclosures. It would be absurd to protect by legislative enactment professional communications, and to leave them unprotected at the examination of the client. In such an event, in all civil actions, the confidential statements of client and counsel would be exposed, and likewise the same would
II. Error is alleged in the discharge of the jury on the 4th of May 1877, from further consideration of the cause, in the absence of the defendant and his counsel. It appears that the jury, in the charge of the bailiff of the court, were
III. As tending to prove the second marriage of the appellant, and that it was celebrated in Wilson county, the state offered in evidence, against the objections of the appellant, the records of the probate court of Wilson county, containing a copy of the marriage license issued Feb. 25th 1877, by the probate judge of said county to the appellant, and authorizing him to be joined in marriage to one Miss Martha F. McGray, together with the copy of the return indorsed on the license, showing that the marriage was solemnized in said county on the 27th of February ■ 1877 by one James A. Hunter. The law makes it the duty of the probate judges to correctly record such licenses, and returns, and provides a severe penalty for neglecting so to do; and further provides that the books of record of marriage licenses kept by -the probate judges of the several counties shall be evidence in all courts. Gen. Stat. 561, ch. 61, §§ 6, 7, and 11. As the probate judge of Wilson county produced the books of record of his office, and duly identified the same, the court properly admitted the records in evidence. The law seems to have been strictly complied with, and as the original records were introduced, no copy thereof was needed, nor was any certificate or seal of the probate judge necessary to be attached thereto to make them admissible as evidence. Neither was the return of the person performing the marriage ceremony invalid, because it did not show on its face that the person whose name was subscribed to it was a person authorized by the statute to perform such ceremony. The defendant should have been identified as the person to whom the license was issued to make the same admissible, if he obtained it in person.