People v. Nelson

• Decision Date: 07 January 1924
• Docket Number: No. 82.,82.
• Citation: 226 Mich. 5,196 N.W. 757
• Parties: PEOPLE v. DOE. In re NELSON.
• Court: Michigan Supreme Court

226 Mich. 5

196 N.W. 757

PEOPLE

v. DOE.In re NELSON.

No. 82.

Supreme Court of Michigan.

Jan. 7, 1924.

Walter M. Nelson was committed to jail for contempt, and he brings certiorari. Affirmed by divided court.

Argued before CLARK, C. J., and McDONALD, BIRD, SHARPE, MOORE, STEERE, FELLOWS, and WIEST, JJ. Dilley, Souter & Dilley, of Grand Rapids (Harry L. Diehl, of Detroit, of counsel), for relator.

Andrew B. Dougherty, Atty. Gen., and Homer H. Quay, Asst. Atty. Gen., for the People.

MOORE, J.

A writ of certiorari was issued in this case to review the proceedings had before Hon. Harry J. Dingeman, circuit judge, sitting as a one man grand jury in a John Doe proceeding under Act 196 of the Public Acts of 1917, as amended by Act 395 of the Public Acts of 1921, pending before him in Berrien county, in sentencing relator, Walter M. Nelson, to the county jail for 30 days.

In the return to the writ the following statement occurs:

‘Respondent further shows that, it being evident to the court from petitioner's own testimony that he had deliberately falsified and that he had been evasive, and that his conduct throughout the inquiry was designed to obstruct justice, respondent therefore committed petitioner to the county jail at Berrien county for a period of 30 days for contempt of court.’

The following contentions are made by relator and are argued by counsel: (1) That the statute is unconstitutional which creates the one man grand jury. (2) That there was no contempt. (3) That respondent erred in finding relator falsified his testimony. (4) That a jury trial was necessary. (5) That respondent, sitting as a grand jury, could not punish for contempt.

In our view of the case a disposition of the second of these contentions will make it unnecessary to discuss the other propositions. The relator is a graduate of the Law Department of the Michigan University, and has had charge of a good deal of litigation with the House of David, so called, at Benton Harbor, or some of its members. Some of the litigation was against the relator and other persons named as defendants. It is said that there were more than ten of these cases pending when the officials of the state decided to have a grand jury inquiry into the conditions at Benton Harbor. The relator, in obedience to a subpoena, attended as a witness. Early in his examination the following occurred:

‘Q. Well, now, at that conference, Mr. Nelson, you stated, did you not, that there was a young lady whose name I don't think was disclosed. that was somewhere in Ohio at that time, that could furnish information upon which to base a criminal warrant against Purnell for having carnal knowledge of a female child under the age of 16 years? A. No; I don't know that I said that.

‘Q. Didn't you express the opinion that you had a girl that could give that information? A. Well, now, you see you are asking now for information about a client of mine, and I have definite instructions from this client. All that I know about that client I learned in the relation of attorney and client, and I am obliged to plead privilege as to anything I know about her.

‘Q. Well, did you state she was a client of yours? Have you any suit pending for her? A. Now, I don't know which one you mean. The girls that I had in mind, and those I had in mind that evening-- I don't remember all that conversation, but the persons that I represent that have any knowledge such as you refer to are clients, and pleadings are either filed or drafted for all of them.’

We again quote:

‘Q. Let me ask you this, Mr. Nelson: What is your reason for not wishing to disclose the name of the girl in Ohio that you thought possibly would furnish this information that we desire, the information upon which to base a statutory charge within the statute of limitations against Benjamin Purnell? A. Well, there are a lot of reasons, and I would be willing-- I really wouldn't want to give them to you because-- I can give you some of them. One of them is: I represent her as her lawyer, and she has a civil claim.

‘Q. One, you say, that could furnish the information? A. Yes.’

The officials were not content with this statement of Mr. Nelson, and required him to attend the sessions of the grand jury upon at least three different days, and to submit to an examination that covers more than 70 pages of the printed record. It ought to be stated in fairness to Mr. Nelson that he claims that any apparent inconsistency in his testimony was due to the fact that either the examiner did not understand him or he did not understand the examiner. Whether Mr. Nelson was guilty of contempt of court will depend upon whether his answers to warious inquiries directed to him by the Attorney General's department and by the judge sitting as a grand jury were privileged, because they came to him professionally from his client or clients.

The question of privileged communication has had the attention of this court many times. Some of the cases are Alderman et al. v. People, 4 Mich. 414, 69 Am. Dec. 321;Riley v. Conner, 79 Mich. 497, 44 N. W. 1040;People v. Hillhouse, 80 Mich. 580, 45 N. W. 484;Erickson v. Railway Co., 93 Mich. 414, 53 N. W. 393;Lorimer v. Lorimer, 124 Mich. at page 637, 83 N. W. 609, and cases cited; Ford v. McLane, 131 Mich. 371, 91 N. W. 617;Mack v. Sharp, 138 Mich. 448, 101 N. W. 631,5 Ann. Cas. 109;People v. Dahrooge, 173 Mich. 375, 139 N. W. 22;Devich v. Dick, 177 Mich. 173, 143 N. W. 56. In People v. Dahrooge, supra, Justice Brooke said in part:

‘This court has frequently held that confidential communications between attorney and client are not to be revealed at any time. Erickson v. Railway Co., 93 Mich. 414, 53 N. W. 393;Mack v. Sharp, 138 Mich. 448, 101 N. W. 631, 5 Am. & Eng. Ann. Cas. 109; Lorimer v. Lorimer, 124 Mich. 631, 83 N. W. 609. See, also, cases cited in Lorimer v. Lorimer, supra; 40 Cyc. p. 2361, and cases cited in note 81.’

In Devich v. Dick, supra, Chief Justice Steere said in part:

‘Exception to the court's refusal to allow defendant to show previous contradictory claims of plaintiff relates to rulings made in sustaining objections to certain questions asked plaintiff on cross-examination touching communications between defendant's counsel, who was conducting the examination, and plaintiff at a time prior to the commencement of this action, when plaintiff and his wife visited said counsel's office to consult him in regard to this case and to engage his professional services. Counsel stated to the court that plaintiff thenmade a statement of facts, to which he listened; that he there declined to take the case and was not retained; that he proposed to show that plaintiff then made ‘contradictory statements.’ Objection to this line of inquiry was sustained on the ground that such communications were privileged. We are of opinion that such testimony was rightly rejected. It clearly appeared that plaintiff visited counsel at his office before this action was brought to consult him professionally and retain his services. The communications then made, and which counsel sought to disclose, were made during a conference for the purpose of establishing the relation of attorney and client in this very case. Tentatively, and until counsel declined to take the case, such relation did exist. The communication related to matters in which the professional services of counsel were desired and asked. ‘If a person, in respect to his business affairs or troubles of any kind, consults with an attorney in his professional capacity, with the view to obtaining professional advice or assistance, and the attorney voluntarily permits or acquiesces in such consultation, then the professional employment must be regarded as established, and the communication made by the client, or advice given by the attorney under such circumstances, is privileged. * * * It is the consultation between the attorney and the client which is privileged and must ever remain so, even though the attorney, after hearing the preliminary statement, should decline to be retained further in the cause, or the client, after hearing the attorney's advice, should decline to further employ him.’ 10 Enc. of Ev. 228. See, also, Foster v. Hall, 12 Pick. (Mass.) 89, 22 Am. Dec. 400;State v. Tally, 102 Ala. 25, 15 South. 722. It is not essential to such relation that any fee be paid, promised, or charged, and such communications are privileged, even though the attorney who was consulted and not retained, as claimed in this case, accepts employment from the party adverse to the person making the communications. Mack v. Sharp, 138 Mich. 448, 101 N. W. 631, 5 Am. & Eng. Ann. Cas. 109; Cross v. Riggins, 50 Mo. 335.'

It is pertinent to inquire how Mr. Nelson could know that some girl in Ohio, or anywhere else, could give ‘information upon which to base a criminal warrant against Purnell for having carnal knowledge of a female child under the age of 16 years,’ unless he had been told by some one having that knowledge. Mr. Nelson over and over again stated that such information as he possessed upon that subject came to him professionally from a client or clients, and that he was not at liberty to disclose it. A careful reading of this voluminous record leads irresistibly to the conclusion that the entire examination of Mr. Nelson was for the purpose of getting information upon which to base a criminal complaint and warrant, and that he at all times was claiming that such information as he possessed was privileged.

The other committing Mr. Nelson for contempt is not justified by this record, and it is hereby set aside, without costs, and Mr. Nelson is discharged.

BIRD, McDONALD, and SHARPE, JJ., concurred with MOORE, J.

FELLOWS, J.

I do not think the question of privileged communications is involved in this case. The plaintiff in certiorari was not committed for refusing to answer questions, but was committed for answering questions falsely and evasively. As stated by Justice MOORE, the...