State v. Fitzgerald
| Decision Date | 17 March 1896 |
| Citation | 68 Vt. 125,34 A. 429 |
| Court | Vermont Supreme Court |
| Parties | STATE v. FITZGERALD. |
Exceptions from Chittenden county court; Russell S. Taft, Judge.
This was a complaint against William Fitzgerald for intoxication. There was a verdict and judgment of guilty, and respondent excepts. Exceptions sustained.
R. E. Brown, State's Arty. H. S. Peck, for respondent,
The evidence tended to show that the respondent was found intoxicated, and was arrested and committed to the county jail; that soon after his commitment he sent for Mr. Cushman, an attorney, to go to the jail for the purpose of examining him, and determining whether he was intoxicated or not; that the attorney went to the jail in company with one Buckley, and had an interview with the respondent; that he conversed with him a while in the jail, in Buckley's presence. Mr. Cushman was employed by the respondent as his attorney, and appeared for him in the city court, but ceased to act for him before the trial closed, and did not appear in the county court, another attorney being employed. He was not improved as a witness. During the argument of the case before the jury the state's attorney, against the objection and exception of the respondent, argued that if Mr. Cushman, when he saw the respondent in the afternoon, was of the opinion that he was sober, he would have been improved as a witness by the respondent, and that it was proper to infer, from the absence of Mr. Cushman, that his testimony, if produced, would have been adverse to the respondent and would tend to show his guilt Mr. Cushman was an attorney of the court and within reach of process. The respondent was convicted and sentenced. Counsel on both sides, in their briefs, have treated the knowledge that the attorney obtained in respect to the respondent's condition as privileged. We think, however, it cannot be held privileged. It does not appear that Mr. Cushman learned, or had an opportunity to learn, any fact in respect to the respondent's condition that was not observable by Buckley, and by all other persons who saw him during the time of his alleged intoxication. No fact came peculiarly within his knowledge on account of his relation to the respondent as his counsel. This being the case, he was not privileged from testifying to what he observed of the respondent's condition. He was an available witness, both to the respondent and the state, but was called by neither. The state's attorney evidently knew that...
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State v. Baker.
...if produced would be unfavorable. State v. Ward, 61 Vt. 153, 191, 17 A. 483; State v. O'Grady, 65 Vt. 66, 69, 25 A. 905; State v. Fitzgerald, 68 Vt. 125, 127, 34 A. 429; State v. Smith, 71 Vt. 331, 334, 45 A. 219; State v. Parker, 104 Vt. 494, 502, 162 A. 696. State v. O'Grady, supra [65 Vt......
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Com. v. French
...March 12--13, 1965. No attorney-client privilege extends to appearances or acts observed by others and not in confidence. State v. Fitzgerald, 68 Vt. 125, 34 A. 429. Brown v. Foster, 1 H. & N. 736, 739--740. See Colton v. United States, 306 F.2d 633, 636--637 (2d Cir.); cert. den. 371 U.S. ......
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State v. Levine
...if produced would be unfavorable. State v. Ward, 61 Vt. 153, 191, 17 A. 483; State v. O'Grady, 65 Vt. 66, 69, 25 A. 905; State v. Fitzgerald, 68 Vt. 125, 127, 34 A. 429; State v. Smith, 71 Vt. 331, 334, 45 A. 219; State v. Parker, 104 Vt. 494, 502, 162 A. 696; State v. Baker, 115 Vt. 94, 10......
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State v. Parker
...available to both parties, no inference unfavorable to the respondent can be drawn from his failure to produce him. State v. Fitzgerald, 68 Vt. 125, 127, 34 A. 429. It is only when the evidence is peculiarly within the knowledge of the party that such inference can be drawn. State v. Fitzge......