Perry v. State

• Citation: 38 P. 655,4 Idaho 224
• Parties: STATE v. PERRY
• Decision Date: 17 December 1894
• Court: United States State Supreme Court of Idaho

38 P. 655

4 Idaho 224

STATE v. PERRY

Supreme Court of Idaho

December 17, 1894

ATTORNEY AND CLIENT-PRIVILEGED COMMUNICATIONS-THIRD PERSON OVERHEARING CAN BE COMPELLED TO TESTIFY.-Confidential communications between attorney and client are privileged, and neither client nor his attorney can be compelled to reveal them, but such communications being overheard by a third party, either by accident or design, such third person can be compelled to testify to them.

SAME-ACTS OF CLIENT AND ATTORNEY MAY BE PROVEN.-The acts of both client and his attorney, when relevant to the issue, may be fully proven.

(Syllabus by the court.) [Copyrighted Material Omitted]

APPEAL from District Court, Bannock County.

Affirmed.

H. V A. Ferguson, for Appellant.

The most notable of early text-writers says, in speaking of the attorneys in the superior courts of Westminister Hall, that they were, "in all points, officers of the respective courts of which they were admitted"; and that they "were peculiarly subject to the censure and animadversion of the judges; and that none were admitted "but such as were virtuous, learned and sworn to do their duty." (Blackstone's Commentaries, bk. 3, c 3, pp. 25, 26.) It was long ago holden that the "judges will exercise their summary jurisdiction over the attorneys of the several courts, not merely in those cases where they have been employed in the conduct of suits, or any matter purely professional; but also 'whenever the employment is so connected with professional character as to afford a presumption that their character formed the ground of their employment.'" (Hughes v. Marye, 3 Term Rep. 275; In re Aitkin, 4 Barn. & Ald. 47; Luxmore v. Lethbridge, 5 Barn. & Ald. 898.) In Earl of Cholmondeley's Case, 19 Ves. 261, it was held, that if an attorney should so far forget his professional duty as to voluntarily offer to give in testimony facts communicated by his client, without express consent of his client so to do, "a short way of preventing him would be to strike his name off the roll." (Earl of Cholmondeley's Case, 19 Ves. 261; People v. Barker, 56 Ill. 287; Cooley's Constitutional Limitations, ed. 1883, 411, 412, and cases cited.) It seems agreed that counselors, attorneys, or solicitors are not obliged to give evidence, or to discover such matters as come to their knowledge in the way of their professions; for, by the duty of their offices, they are obliged to conceal their client's secrets, and everything they are intrusted with is sub sigillo confessoris." (Bacon's Abridgment, Evidence, A 3; Riggs v. Denniston, 3 Johns. Cas. 198, 2 Am. Dec. 145; State v. Dawson, 90 Mo. 149, 1 S.W. 827; Marks v. Beyfus, 25 Q. B. D. 494; People v. Hamberg, 84 Cal. 468, 473, 24 P. 298; Sutton v. State, 16 Tex. App. 490; State v. James, 34 S.C. 49, 12 S.E. 657.) "The tendency of modern decisions has been to extend rather than to narrow the rule, from a conviction that, though sometimes the cause of justice might be advanced by compelling disclosures, the evils that would result would greatly overbalance the possible advantages." (Am. Law Reg. 1879, p. 74; Foster v. Hall, 12 Pick. 89, 93, 22 Am. Dec. 400; Cromack v. Heathcote, 2 Brod. & B. 4; Regnell v. Sprye, 10 Beav. 51; Greenough v. Gaskell, 1 Mylne & K. 98; Moore v. Bray, 10 Pa. St. 519; Bacon v. Frisbie, 80 N.Y. 394, 36 Am. Rep. 627, and note; Preston v. Carr, 1 Younge & J. 175; Ross v. Gibbs, L. R. 8 Eq. 522; Woods v. Woods, 4 Hare, 83.)

George M. Parsons, Attorney General, for the State (James H. Hawley, of Counsel).

The particular relations in which it is the policy of the law to encourage confidence and to preserve it inviolate, are defined by statute. (Rev. Stats., sec. 5958.) Careless actions which may betray are not included therein. "When the question is whether the evidence of a witness is to be excluded on the ground of privilege, as where the witness is an attorney, and the evidence is a confidential communication of his client, is a question for the court." (Thompson on Trials, sec. 326; Coveney v. Tannahill, 1 Hill, 33, 37 Am. Dec. 287, and note.) That "privilege" extends to attorneys alone, and not to third parties not interested in a confidential communication. (Wharton's Law of Evidence, 3d ed., secs. 586, 587; Hoy v. Morris, 13 Gray, 519, 521, 74 Am. Dec. 650; Goddard v. Gardner, 28 Conn. 172; Wharton's Criminal Evidence, 9th ed., sec. 502; State v. Mewherter, 46 Iowa 94; Jackson v. French, 3 Wend. 337, 20 Am. Dec. 699; Gardner v. People, 6 Park. C. C. 155; People v. Sheriff, 29 Barb. 622-624; Weeks on Attorneys, sec. 161; Holman v. Kimball, 22 Vt. 555; 1 Greenleaf on Evidence, sec. 254a; Barnes v. Harris, 7 Cush. 576, 54 Am. Dec. 734; Yordan v. Hess, 13 Johns. 492.)

In this case the defendant was indicted and charged with the murder of one Patrick McNamara. The indictment is as follows: "The said Charles Perry, on the twenty-fifth day of June, A. D. 1894, at the county of Bannock, state of Idaho in and upon one Patrick McNamara, a human being, willfully, feloniously, and unlawfully did then and there make an assault; and with a certain hatchet, said hatchet being then and there a deadly weapon, and which said hatchet he, the said Charles Perry, then and there in his hands had and held, willfully, feloniously, and unlawfully, premeditatedly, deliberately, and of his malice aforethought, and with intent him, the said Patrick McNamara, then and there to kill and murder, did then and there strike, beat, and bruise the head of him, the said Patrick McNamara, then and there and thereby inflicting upon him, the said Patrick McNamara, one mortal wound, of which mortal wound he, the said Patrick McNamara, then and there instantly died." On July 26, 1894, J. Ed Smith and P. E. Keeler were appointed to defend said Charles Perry. On the twenty-seventh day of July the defendant pleaded "not guilty" to the indictment. On August 3d the case was called for trial. The attorney, J. Ed Smith, did not appear. Thereupon the court appointed H. V. A. Ferguson, an attorney, to defend the said Perry, which the said Ferguson, assisted by P. E. Keeler, did. On the fourth day of August, the trial coming on, Garrett Sullivan, H. E. Evans, Tim McCarty, A. Manassa, Charles Phelps, George Ross, Lyman Fargo, S. C. Winters, and Dr. I. H. Moore were sworn as witnesses, and testified in behalf of the state. G. Swinehart, George Dash, and L. A. West testified on behalf of the defendant. The defendant was convicted of murder in the first degree, and judgment pronounced.

Defendant moved for new trial, and states the following reasons: 1. On the ground that the indictment is insufficient to justify a verdict of murder in the first degree, and insufficient to justify any conviction greater than manslaughter. 2. That the verdict and judgment are contrary to the evidence and the law. "3. Errors of law, in this: that the court permitted to go to the jury testimony of S. C. Winters as to the conduct of J. Ed Smith, when said Smith was the attorney of the defendant, and in particular testifying to the act of said Smith in showing to the said Winters a ten-dollar bill; evidence in regard to the ten-dollar bill by Winters and Fargo; and evidence of the analysis of a spot on the bill by Dr. I. H. Moore. 4. In permitting Ross to testify how he, as deputy sheriff, shadowed and watched the said J. Ed Smith on a certain night, to a place called Lava, on the Oregon Short Line Railroad, and as to what transpired at or near said station, to wit: That the said George Ross discovered the said J. Ed Smith stooping down and digging a hole at the foot of a fence post, and surprised him in the act; and further stating that he, the said George Ross, went to one side of the said J. Ed Smith to search at the bottom of another fence post, and that the sheriff of the county, one Garrett Sullivan, went to the other side of the said J. Ed Smith, at the foot of another fence post, then and there dug up a certain handkerchief containing three twenty dollar gold pieces; and how the said Sullivan exclaimed, 'Boys, I've found the money'; and in further stating that the said J. Ed Smith sprang forward, and attempted to grab the money, and said, 'That is my client's money.' 5. The court erred in permitting Garrett Sullivan, the sheriff of the county of Bannock, a witness for the prosecution, to testify as to how he assisted in shadowing and watching the said J. Ed Smith, the attorney for the above-named defendant, and in following him to Lava station, above mentioned, and in participating in the search for the money, and as to seeing the said J. Ed Smith there."

Charles M. Phelps testified as follows: "My name is Charles M Phelps. Am acquainted with Perry. Have known him the last three or four weeks. Am confined in the same jail with him. I have had a conversation with him about the murder of McNamara since he has been confined in the jail. This conversation grew out of a talk we had before. The conversation occurred like this: Mr. Caldwell, one morning about 6 or 7 o'clock, was in the habit of letting me out, and this particular morning he told me that the sheriff had discovered Smith at Lava digging up some money." Hereupon the defendant by his counsel moved to strike out the latter portion of the witness' answer, which said motion the court granted. "I told Perry that Caldwell had told me that the sheriff had followed Smith to Lava, and had surprised him in the act of digging up some money. He said: 'I was afraid, when I told Smith about getting that money, that I should not have done it.' This Smith is J. Ed Smith. His relation to the defendant at that time was that he had his case. I know that he had it. Well, there was considerable talk about the matter at that time. I said to him: 'Is that your money Smith...