People v. Gallagher

• Decision Date: 28 June 1889
• Citation: 75 Mich. 512,42 N.W. 1063
• Court: Michigan Supreme Court
• Parties: PEOPLE v. GALLAGHER.

42 N.W. 1063

75 Mich. 512

PEOPLE v. GALLAGHER.

Supreme Court of Michigan

June 28, 1889

Error to recorder's court of Detroit; GARTNER, Judge.

George F. Robison, Pros. Atty., for the People.

MORSE J.

On the evening of January 3, 1887, Capt. Ira F. Holt, an old and esteemed citizen of Detroit, nearly 60 years of age, was, on his way home and in the residence portion of the city attacked by four men, violently beaten, and robbed of a gold watch. The respondent was arrested, with others, for the crime. He was informed against for robbery, being armed with a dangerous weapon, convicted, and sentenced to twenty-five years in the state-prison at Jackson. He was convicted chiefly upon the testimony of Joseph Coveyeau, an accomplice although there was some circumstantial evidence looking towards his guilt. Errors are alleged as having occurred on the trial, and he asks a review of the same in this court claiming that he is entitled to a new trial by reason of such errors.

Charles Flowers, an attorney, was examined, as a witness on the behalf of the defendant. Coveyeau had been, prior to the trial of respondent, tried and convicted for a burglary, committed on the same night as the assault upon Holt, and claimed by the prosecution to have been committed by the identical four persons who robbed Capt. Holt, to-wit, Coveyeau, Gallagher, Preston, and Hartnutt. Flowers defended Coveyeau in the burglary case, and it was sought by the defense to contradict the testimony of Coveyeau, given upon the trial of respondent, by showing that in his statements to Flowers, while he was his attorney in the burglary suit, he named his accomplices in the robbery of Capt. Holt, and did not mention either Gallagher or Preston as being concerned therein, and by other statements exonerated the respondent from any part therein. Mr. Flowers refused to answer some of the questions upon the ground of privilege, and the circuit judge ruled that he could use his own discretion as to answering them. Upon the theory of the prosecution, and according to the testimony of Coveyeau, the men who assaulted and robbed Capt. Holt, went almost immediately from the place of the robbery to the Moross House, where the burglary was committed, and each was the work of the same four men. Consequently on both trials the two transactions were necessarily more or less connected and involved in the evidence. There can be no doubt, from all the circumstances shown by this record, but that Coveyeau was a participant in both crimes. He was arrested watching in front of the Moross House, while the burglary was going on, and before his seizure was seen to throw away a watch, which was found, and proved to belong to Capt. Holt. One of the officers who came upon the burglars while they were in the house, and fired at them as they ran out, identified Gallagher as being one of them. These statements of Coveyeau, therefore, made to his attorney while on trial for the burglary, as to who, with himself, committed the robbery, were upon a subject legitimately and necessarily connected with and relating to his defense in that suit. The question arises, can these statements, made under such circumstances, be used upon another trial to show that Coveyeau is testifying falsely, or guilty of perjury therein?

The counsel for the respondent contend- First. That the privilege of declining to answer is not the privilege of the attorney, but of the client; and that Coveyeau, having turned state's evidence, and attempted to convict others by proof also convincing himself, must be deemed to have thereby waived all privileges which would permit him to withhold anything, and therefore Mr. Flowers should have been compelled by the court to give in evidence such parts of the communication of respondent to him, while he was his attorney, as the defense desired, or the whole of it, if demanded by either side. Second. The statements of Coveyeau to Flowers, as to who with himself committed the burglary, could, under no circumstances, be considered privileged, as the privilege exists for lawful purposes only.

Coveyeau, when on the stand, testified that he had a conversation with Mr. Flowers in the jail. This was in answer to a question put to him by the defense on cross-examination. The question was raised by the prosecution that the conversation was privileged, and the court said that he must answer, but, if they put Mr. Flowers on the stand to rebut the answers, then the question of privilege might be argued. Thereupon Coveyeau answered the question, stating that he mentioned the subject of his accomplices to Flowers, but did not say who they were, and denied making the statement to Flowers that the men who were with him in the robbery were from Chicago, and that he had named Gallagher and Preston to the prosecution as being with him, because he knew they would have no trouble in clearing themselves. It is admitted by Mr. Robison, upon the part of the people in the argument before us, that the ruling of the court was erroneous, and that Mr. Flowers was a competent witness for the purpose of impeaching Coveyeau. This court said in the case of Alderman v. People, 4 Mich. 414: "It is a rule of law that no witness shall be required to answer any question that may tend to criminate himself, yet the accomplice, when he enters the witness-box with a view of escaping punishment himself by a betrayal of his co-workers in crime, yields up and leaves that privilege behind him. He contracts to make a full statement,-to keep back nothing,-although in doing so he may but confirm his own guilt and infamy. If he fails to do so in full, if he knowingly keeps back any portion of the history of the crime he undertakes to narrate, he forfeits his right to pardon, and may be proceeded against and convicted upon his own confession, already made. *** We think an accomplice who makes himself a witness for the people should be required to give a full and complete statement of all that he and his associates may have done or said relative to the crime charged, no matter when or where done, or to whom said. He should be allowed no privileged communications." See, also, Foster v. People, 18 Mich. 265; Hamilton v. People, 29 Mich. 173. It is also well settled that the privilege is that of the client, and not of the attorney. Therefore, if the client waives it, the attorney cannot insist upon it. We are satisfied that in the case of one who has admitted his connection with a crime, testifying against another as his accomplice, not only the people, but the defense, are entitled to the whole story, and to all that the witness has said or done in relation to the offense up to the time of the giving of his testimony, including confidential communications to his attorney. As far as the crime in question is concerned, he has, by going upon the stand and acknowledging his participation in it, waived all privilege as regards it, as the reason of the privilege has been removed by his own act. And if he should be shown by such communications to have committed perjury, even on such trial, these communications being made in reference to another crime than perjury, and before the perjury is committed, stand upon the same footing as any other statements made out of court before or during such trial, as they were only privileged in reference to a crime which he has admitted and offered to make a full breast of, and not in reference to some crime that he might commit in the future, but had no thought of when the statements were made. But the statements made by Coveyeau to Flowers could not be admitted in evidence to impeach him, except in the same way that other statements of his out of court would be admitted. It was his right, and the right of the prosecution, to have his attention called to them before they could be admitted. A careful examination of the record shows that the claim of the people on the argument here is correct, that Mr. Flowers, although taking his supposed privilege upon some questions put to him, did in the end answer every material question relating to any matter of such communications to which the attention of Coveyeau had been directed, and that he corroborated the testimony of Coveyeau in so far as he gave evidence to any fact or statement of which inquiry was made of Coveyeau.

The only material questions asked Coveyeau about his conversation with Mr. Flowers were these: " Question. Did you have a conversation with Charles Flowers in jail? Answer. Yes, sir. Q. At or about the time it was reported that you had told who your accomplices were? A. Yes, sir. Q. And did you have a conversation with him in reference to who your accomplices were? A. No, sir. Q. Did you have a conversation with him in jail? A. I had a conversation with Mr. Flowers in jail. Q. Now, I put the question, did you have a conversation with him in regard to who your accomplices were? A. I did not say who they were; I just merely spoke about the subject. Q. Did you have any conversation with him in the jail? A. Yes, sir; something to that effect. Q. Did you there state to him that you answered hastily; that the men who were with you were strangers to the police; that you named the men that you had, Gallagher and the others, because you knew it would be so easy for them to clear themselves? A. I made no remark of that kind. Q. Did you say, in substance,-I don't care about the words,-did you not say, in substance, when Mr. Flowers reproved you for making any such statement,-did you not say to him: 'They came to me, and in a hurry I named the men. The men who were with me were strangers to the police, but I named these men, because I knew they would have no trouble in clearing themselves?' A. I didn't say that. Q. What did you say to him about your accomplices...