Evans v. State

• Decision Date: 02 May 1911
• Citation: 115 P. 809,5 Okla.Crim. 643,1911 OK CR 135
• Parties: EVANS v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

115 P. 809

5 Okla.Crim. 643, 1911 OK CR 135

EVANS v. STATE.

Court of Criminal Appeals of Oklahoma

May 2, 1911

Syllabus by the Court.

The statute which provides that an attorney shall not be compelled to testify "concerning any communication made to him by his client, in that relation, or his advice thereon without the client's consent" (Comp. Laws 1909, § 5842, subd. 4), is but declaratory of the common law, and should be fairly construed and applied according to the plain import of its terms. The statute is for the benefit of the client, not the attorney.

An attorney is employed in his professional capacity when he is voluntarily listening to a client's preliminary statement. It is not necessary that any retainer should have been promised, paid, charged or demanded, and it makes no difference, even though the services are gratuitous.

Appeal from District Court, Blaine County; G. A. Brown, Presiding Judge.

J. C Evans was convicted of forgery, and appeals. Affirmed.

J. W Johnson and Seymour Foose, for plaintiff in error.

Chas West, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.

DOYLE J.

Plaintiff in error, J. C. Evans, was jointly indicted with P. F. Tyler and W. S. Wishard for the crime of forgery, as defined by section 2560, Snyder's Sts., which indictment is set out in the companion case of W. S. Wishard v. State (decided at this term) 5 Okl. Cr. --, 115 P. 796. September 29, 1909, the case was called for trial, and plaintiff in error demanded a severance, which was allowed, and his trial commenced. October 1st the jury returned a verdict of guilty, and assessed his punishment at imprisonment in the penitentiary for a period of seven years. Motions for a new trial and in arrest of judgment were duly filed. October 7, 1909, said motions were overruled, and judgment and sentence was pronounced and entered in accordance with the verdict. Defendant appealed by filing in this court on January 5 1910, a petition in error with case-made. The facts are fully stated in the companion case of Wishard v. State, supra. The assignments of error present but one new question.

Error is assigned upon the ruling of the court sustaining the motion of the state to exclude the testimony of the witness Ed Baker, and in instructing the jury not to consider the same. It appears from his testimony that he was a practicing attorney at Watonga; that he was acquainted with the Rossiters; that two of the Rossiter boys and their father came to his office and consulted him concerning a criminal case; that about a week the father and his two sons, Jesse and John, visited his law office. He further testified as follows: "Q. Did either one of those there in your presence and hearing make the statement in the presence of the others that Elwood Rossiter had signed the names of both the men to that deed; that is, the name of J. M. Rossiter and J. C. Rossiter? A. They certainly did. Q. Do you remember any other occasion that same fall when some of these Rossiter women were in your office? A. Yes, sir; these men were there and there were other conversations, and they were talking of employing me. I said, 'How many witnesses can you prove these alleged facts by?' I said, 'I want to talk to the witnesses myself.' And we made an appointment at that time before that court adjourned that they were to bring the whole family in there, and they did do that. There was one of the girls, I would not swear which one it was, but I knew what she looked like then. I know one or two girls were there. Elwood, the old man, and Jesse, and, I think, Linn, was there, and this same talk was had, and they told me then that Elwood was the man who had signed the deed and Cora or one of the girls had signed the name of Julia Rossiter to this deed. By Mr. Foose: That is all." Cross-examination: "By Mr. Boardman: Q. When was that? A. I think it was in 1906, but the court records here would show the time it was. It was right immediately following the transaction where Jesse Rossiter was released by order of district court. Q. You had seen some of them previous to that? A. Yes; I had transacted a little business in a legal way for one of them just before that, but at the time of that transaction something was said, but no arrangement made or anything of that kind, but this matter I think probably was mentioned. Q. Did they say something about coming in to see you again? A. I would not say whether they did or not, but I think they did. Q. You were a practicing attorney in this county and state at that time? A. Yes, sir. Q. What did they say? What was the first thing any of them said? A.

I think the old man done most of the talking that day. As to just what was the first thing said, I don't remember. We were talking about this land deal. Q. This same deed? A. Yes, sir this deed, and also about the transaction in regard to the old man's place. Two different deals were talked about at that time, about the old man giving a mortgage on his place, and about this deed being signed up to Elwood Rossiter. Q. Is it not a fact that these people were in your office at that time seeking counsel? A. Yes, sir. Q. No question about that? A. No question about that; to see what their remedy might be. Q. You were asking these things with a view to getting at the facts? A. Yes, sir. Q. Trying to set aside this deed? A. That was the object of it. Q. They did set the deed aside? A. I think the records show it was set aside, though I had nothing to do with it. They never employed me in this matter, though we counseled about it twice. Q. After you counseled the first time and they stayed in there about an hour, what did you say to them as they left? Had you decided as to what their rights were or had you reserved something? A. I know I told them this: They were to come back again soon and were to bring the women. I wanted to talk to all of them and see who all the witnesses were, and what they knew about it. Q. What time of year was that, the first visit you speak of? A. I think it was in the fall. Q. Of 1906? A. I think so. Q. How long after that was it that they came in again with some of the women? A. Only two or three days. Q. Did you talk with them again? A. Yes, sir. Q. Go over the same matter? A. Yes, sir. Q. Did you charge them anything for counsel? A. No, sir; we fell out about the fee, and I was not employed. I suppose was the reason, I put my price, and they thought it was too high, and the matter dropped there. Q. You had got to the point in the...