Smale v. United States
| Decision Date | 05 December 1924 |
| Docket Number | No. 3454.,3454. |
| Parties | SMALE et al. v. UNITED STATES. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Everett Jennings, of Chicago, Ill., for plaintiffs in error.
Jacob I. Grossman, of Chicago, Ill., for the United States.
Before ALSCHULER, EVANS, and PAGE, Circuit Judges.
Plaintiffs in error were convicted under an indictment charging them and one Carroll with conspiracy to influence a juror, and to obstruct and impede the due administration of justice. Numerous errors were assigned in support of the writ of error, but on oral argument all were waived or abandoned save one, which dealt with the admission of evidence.
The objectionable evidence was elicited on rebuttal. A privileged communication was the asserted basis for the objection. Defendant Smale was without objection interrogated concerning a statement by him made to one Igoe, attorney for the defendant Carroll. He denied making such a statement. At the close of defendants' testimony, Igoe was called as a witness by the government, and, against the objection of himself and defendant Smale, directed to relate the statement made by Smale to him which Smale had denied making.
When arrested and taken to the marshal's office, Smale sent for his lawyer, and defendant Carroll, who was also apprehended at the same time, sent for his attorney, Igoe. Igoe arrived shortly before Smale's counsel, and was conferring with his client, when Smale, who was in the same room, went voluntarily to Igoe and in substance said that he had not been in Carroll's saloon for six months, which, if true, disproved the government's theory that the conspiracy to corrupt the juror was hatched, and in part effectuated, in Carroll's saloon a few days before. On cross-examination, and without objection, Igoe stated that he told Smale that his client, Carroll, had told him a different story, and that he (Carroll) was going to tell only the truth.
We may pass the pertinent query whether the prejudice arising from this testimony did not lie in the statement which Igoe made without objection on cross-examination in favor of his client, Carroll, rather than in the information which the government elicited respecting Smale's statement to him. There may have been some prejudice to Smale's cause, however, in the reception of the testimony thus given on direct examination, and, as an appropriate objection was made, its admissibility must be determined.
The general rule which excludes privileged or confidential statements is so well recognized that it needs no restatement. It is because the present is a somewhat unusual situation that controversy has arisen. That the relation of attorney and client must ordinarily exist before the communication is privileged must be admitted. 28 R. C. L. 553; 40 Cyc. 2363; York v. United States, 224 F. 88, 138 C. C. A....
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U.S. v. McPartlin
...related to the exclusion of a specific item of evidence. See, Note, Supra, 63 Yale L.J. at 1035-1036.16 Smale v. United States, 3 F.2d 101, 102 (7th Cir. 1924), relied on by Ingram, in which one defendant volunteered statements to another defendant and the latter's attorney and the requisit......
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...appears to me to be not wholly consistent with the thought that the conference was secret and confidential. Compare Smale v. United States, 7 Cir., 3 F.2d 101, where a statement made by one defendant to the attorney for a codefendant was held not to be privileged. It is my feeling that the ......
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MATTER OF GRAND JURY SUBPOENA, ETC., NOV. 16, 1974
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Steiner v. United States, 10370.
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