Behrens v. Hironimus, 5765.

• Decision Date: 08 November 1948
• Docket Number: No. 5765.,5765.
• Citation: 170 F.2d 627
• Parties: BEHRENS v. HIRONIMUS.
• Court: U.S. Court of Appeals — Fourth Circuit

170 F.2d 627 (1948)

BEHRENS v. HIRONIMUS.

No. 5765.

United States Court of Appeals Fourth Circuit.

November 8, 1948.

Wilbur V. Keegan, of Detroit, Mich. (B. F. McGinnis, of So. Charleston, W. Va., and Theodore Fernholz, of Detroit, Mich., on the brief), for appellant.

A. Garnett Thompson, Asst. U. S. Atty., of Charleston, W. Va. (Leslie E. Given, U. S. Atty., of Charleston, W. Va., on the brief), for appellee.

Before PARKER, Chief Judge, and SOPER and DOBIE, Circuit Judges.

DOBIE, Circuit Judge.

The proceedings in this case prior to the first appeal to us are set out in our opinion in this first appeal, Behrens v. Hironimus, 4 Cir., 166 F.2d 245. These need not be repeated here.

We held, in that opinion, that plaintiff's application for habeas corpus did make out a prima facie case, the judgment of the District Court was reversed and the case was remanded to the District Court "with instructions to issue the writ of habeas corpus, hear the evidence, determine whether or not the allegations of the petition are true and for such further proceedings as the ends of justice may require."

In pursuance of our mandate, a hearing was held by the District Court, April 19, 1948, at which testimony was produced at great length. At the conclusion of this hearing, the District Court found that the petitioner Behrens had failed to prove that she was denied any of her federal constitutional rights and the petitioner Behrens was remanded to the custody of the respondent Hironimus. From this decision, petitioner has appealed.

Of the many points urged upon us by counsel for petitioner, we think only three points require discussion by us: (1) The admission of the testimony of Mrs. Merrill, a lawyer consulted by petitioner; (2) Whether petitioner competently and intelligently waived the benefit of counsel; and (3) Whether petitioner's plea of guilty, on which she was sentenced, was entered under duress and improper pressure.

We think the evidence of Mrs. Merrill was clearly admissible. Article 6, Chapter 50, Section 10, Serial Section 4992, of Michie's West Virginia Code, provides: "The following persons are incompetent to testify, as hereinafter provided, and not otherwise: * * * An attorney, without his client's consent, concerning any communication made to him by his client touching the matter in which he is professionally consulted or employed, or any counsel or advice given by him to this client in a professional capacity".

See Federal Rules of Criminal Procedure, Rule 26, and Committee notes, 18 U.S.C.A. The apposite rule here seems to be correctly stated in 70 Corpus Juris, Witnesses, Section 502: "The existence of the relation of attorney and client is not a privileged communication. The privilege pertains to the subject matter, and not to the fact of the employment as attorney, and since it presupposes the relationship of attorney and client, it does not attach to the creation of that relationship. So, ordinarily, the identity of the attorney's client, or the name of the real party in interest, and the terms of the employment will not be considered as privileged matter. The client or the attorney may be permitted or compelled to testify as to the fact of his employment as attorney, or as to the fact of his having advised his client as to a certain matter, or performed certain services for the client * * *."

See, also Woodrum v. Price, 104 W.Va. 382, 388, 140 S.E. 346; Goddard v. United States, 5 Cir., 131 F.2d 220.

There may be some doubt in this case whether Mrs. Merrill and petitioner actually sustained the relationship of attorney and client, since Mrs. Merrill refused to accept the case. But we think, if such a relationship existed, the testimony of Mrs. Merrill was admissible. The privilege here extends only to confidential communications. Mrs. Merrill gave no testimony whatever as to any confidential communications made to her by petitioner; her testimony was limited to the fact that she had been consulted by petitioner and that she had given the petitioner advice on certain subject matter. This testimony was certainly relevant and important, since petitioner strenuously contended that she acted all through the proceedings without benefit of counsel.

The burden of proof that the petitioner's waiver of counsel was not competent and intelligent rests clearly upon her. Johnson v. Zerbst, 304 U.S. 458, 468, 58 S.Ct. 1019, 82 L.Ed. 1461, 146 A.L.R. 357; Behrens v. Hironimus, 4 Cir., 166 F.2d 245, 248. The District Court made a specific finding that petitioner "voluntarily and intelligently waived her right to counsel." There is ample evidence to support this finding and we cannot hold that...