State Of West Va. v. Douglass.

• Decision Date: 18 November 1882
• Citation: 20 W.Va. 770
• Court: West Virginia Supreme Court
• Parties: State of West Virginia v. Douglass.

20 W.Va. 770

State of West Virginia

v.Douglass.

Supreme Court of Appeals of West Virginia.

Submitted June 28, 1882

Decided November 18, 1882.

1.A judgment based on a verdict in either a civil or criminal case will be reversed by the Appellate Court, if the record shows, that there was no issue made up by the pleadings in the case,

2.The entire professional intercourse between an attorney and his client, whatever it may have consisted in, should be protected by profound secrecy.Hence professional communications of every character are forbidden to be given in evidence against a client by an attorney,

3.By professional communications are meant, not only what the client may have said to his attorney as such, but also every fact, which the attorney has learned only in his character as attorney, f

4.If for instance, a prisoner charged with murder informs his attorney where the pistol, with which the man was murdered, is hidden, the attorney can not state to the jury, that he found the pistol, as his finding it was the result only of the knowledge of the place where it was hidden, which was communicated to him by his client; and the rule, which prohibits him from disclosing professional communications, is violated by his stating, where the pistol was found, though he refrains from stating, that his knowledge of where it was to be found, was derived from what his client told him.

5.If having found the pistol in this manner he were to put it into his trunk, where it should be found by others by reason of their having gone into his trunk to search for it, though they made such search in his absence and unlawfully, whether their suspicion, that he had this pistol, arose from his improper disclosures of what he had learned from his client or not, such persons so finding such pistol may produce it before the jury and prove the simple fact, that they found it in the trunk of the attorney for the prisoner; but they can not state to the jury what the attorney said to them, or they to him, on the occasion of such finding or at any other time in reference to this pistol, or how it came into his possession.Nor will the attorney be permitted to say anything whatever to the jury in reference to such pistol,

6.The commonwealth has a right on such trial to prove the fact, that the pistol wherewith the murdered man was shot, was found, and where and when it was found; though it wTas found in consequence of statements, as to where it was to be found, extorted improperly from the prisoner, or improperly made by the attorney of the prisoner, in violation of his duty to his client to keep secret professional communiccitions madj to him by his client,

Writ of error to a judgment of the circuit court of the county of Grant rendered on the 3d day of October, 1877, in an action upon an indictment for murder in the said court then pending, wherein the State of West Yirginia was plaintiff and William S. Douglass wras defendant, allowed upon the petition of said Douglass.

Hon. James I).Armstrong, judge of the twelfth judicial circuit rendered the judgment complained of.

Green, Judge, furnishes the following statement of the case.

Wm. S. Douglass, was on June 5, 1877, indicted in the circuit court of Grant county, for the murder of David Hiser, by shooting him with a pistol, on April 3, 1877.The prisoner was brought into court, and his counsel moved the court to quash the indictment and each count thereof, which the court refused to do, and he then demurred to the indictment and each count thereof, which demurrerthe court overruled.

I deem it unnecessary to set out the indictment, as it is not objected to in this Court and I perceive no defect in it.The prisoner then asked to change the venue for the trial to some other county.On this application affidavits were filed, and testimony given before the court, both by the prisoner and State.These, for reasons which will be stated in the opinion, I deem unnecessary to set out, The court overruled the application of the prisoner for a change of the venue for the trial.And the prisoner then asked the court to continue the case which the court did.At the next term of the court the prisoner having been brought into court by his attorney, renewed the motion for a change of tlie venue for the trial, which was again refused by the court, A list of twenty qualified jurors from those in attendance, and those summoned by order of the court, having been made up and the accused having stricken off eight, a jury consisting of twelve persons were sworn to well and truly try, and true deliverance make between the State and William Seymour Douglass, the prisoner then at the bar, and a true verdict give according; to the evidence.

The trial lasted from September 21, 1877, to October 2, 1877, when the jury rendered their verdict, in which they found the prisoner Wm. Seymour Douglass, guilty of murder in the first degree as charged in the indictment; and they further found that he be punished by confinement in the penitentiary.This verdict was endorsed on the indictment.On the 3d of October, 1877, the prisoner moved the court for a new trial, which the court refused.He also moved tlie court to arrest the judgment, because the indictment was found at a special term, which motion the court overruled.The court then pronounced its judgment, that the prisoner be punished by confinement in the penitentiary of this State during his natural life.Six hills of exceptions were taken by the prisoner.The first was to the refusal ot the court to change the venue for the trial, which sets out the voluminous evidence taken on this question.The next two exceptions were as follows:

First, "Be it remembered that upon the trial of this cause in the circuit court of Grant county, the counsel for the State having introduced a pistol into evidence before the jury, proceeded to show by a witness that said pistol had been obtained by him from one of the counsel for the prisoner, to which the prisoner, by his counsel, claiming that said pistol was a privileged communication, as set forth in bill of exceptions No. 3, which is to be taken as part hereof, objected, but the court overruled said objection and allowed said evidence as to the pistol having been obtained from said counsel to go before the jury, but, as was stated at the time, he would instruct the jury, subsequently done in the instruction marked No. 3; to which action and decision of the court in admitting said evidence before the jury the prisoner, by his counsel, excepted, and prays that this his bill of exception may be signed, sealed and enrolled, which is done accordingly.

"Jas. D. Armstrong, [seal.]"Second, Be it remembered that upon the trial of this cause in the circuit court of Grant county, the counsel for the State having previously offerred evidence tending to prove that there were four shots fired on the morning of the day and in the direction of the place where the murder was supposed to have been committed, and when the body was found that the ball taken from the body of the deceased was an army pistol ball, and that a certain army pistol had been in the possession of one Peter Welton, a brother-in-law of the prisoner, and that said pistol was kept by said Welton prior to the murder in a certain bureau drawer in his house, and that the pistol was last put by him in said bureau and had four loads in it, two having been shot out of it, and that the same had not been seen by said Welton in said bureau, or anywhere else, since it was put in the bureau aforesaid, on the first day of January last, nor did said Welton know where it was, and that a pistol of about the same length was seen in said bureau, in the house of said Peter Welton, in the town of Petersburg, by another witness, a few days prior to the murder, and further that the prisoner at the date of the murder was staying with his said brother-in-law, at the said house where said bureau was kept and in wdiich said pistol was seen, and that the prisoner was seen to go into the said house and stay a few minutes and come out again immediately before he started in the direction of the place and on the day the murder was committed, and the counsel for the State promising that they afterwards would by evidence connect and prove said pistol to be the same with which the murder was committed, offered in evidence the said pistol for the purpose of identifying said pistol by a witness then on the stand as the pistol placed in said bureau by said Peter Welton and seen by the witness as aforesaid, which pistol was obtained from one of the. counsel for the prisoner; to the introduction of which, the prisoner, by his counsel, objected upon the grounds that said pistol was a privileged communication from the prisoner to his counsel, and that the same had been improperly and by force obtained from said counsel; and thereupon tlie assistant counsel for the State and the said counsel for the prisoner filed before the judge of said court written statements under oath as to said pistol, the said counsel for the prisoner claiming the benefit of the privilege as counsel; and other witnesses were examined by the said court; which statements of counsel and testimony of said witnesses are in the wrords and figures following, to-wit: Whereupon the court having heard the arguments of counsel, overruled the said objection and permitted the said pistol to be introduced in evidence before the jury, but refused to permit any declarations of the prisoner to his counsel in regard thereto to be introduced; to wdiich action and judgment of tlie court in overruling said objection and permitting said pistol to be introduced in evidence before the jury, the prisoner, by his counsel, excepted, and prays this his bill of exceptions may be signed, sealed and enrolled, wdiich is accordingly done.

Ujas.D. Armstrong, [seal.]"The statement referred to in the bill of exceptions was in substance, that the prisoner's counsel wTas...