State v. Miller

• Decision Date: 21 February 1914
• Citation: 78 Wash. 268,138 P. 896
• Parties: STATE v. MILLER.
• Court: Washington Supreme Court

138 P. 896

78 Wash. 268

STATE v. MILLER.

Supreme Court of Washington

February 21, 1914

Department 2. Appeal from Superior Court, Pierce County; M. L. Clifford Judge.

Charles Elliott, alias Peter Miller, was convicted of burglary, and of being an habitual criminal, and he appeals. Affirmed.

Joseph M. Glasgow, of Seattle, for appellant.

John F Murphy and Everett C. Ellis, both of Seattle, for the State.

MORRIS J.

Appellant having been convicted of the crime of burglary, appealed to this court, alleging error in the admission of evidence of certain confessions. The judgment was reversed upon this ground in State v. Miller, 68 Wash. 239, 122 P. 1066, and a new trial ordered. Appellant, having been tried and convicted the second time upon the burglary charge, and under a supplemental information having been convicted under the habitual criminal act, has again appealed.

Upon this appeal 98 assignments of error are made, 82 of which are to the admission and rejection of testimony; the remainder relating to instructions, various motions and demurrers, and an attack upon the habitual criminal act of 1903 (Laws of 1903, c. 86). It is manifest we cannot here review all these assignments, as to do so would prolong this opinion to a prohibited length. To give a proper understanding of the errors predicated upon the rulings of the lower court in the admission and rejection of testimony would ofttimes necessitate quoting much of the record so as to show the context and the relation of the testimony to other admittedly relevant and admissible matter. It is sufficient to say that the record has been carefully read and consideration given to each alleged error, and in no instance can we say we find any ruling that suggests any prejudicial effect against appellant. We will, however, refer to some of the alleged errors upon which appellant lays great stress as fairly illustrating the character of the evidence objected to.

The burglarized house belonged to Fred Fisher, and Mrs. Fisher, over appellant's objection, was permitted to testify that, about three weeks subsequent to the burglary charged in this information, the house was entered a second time, and some silverware taken that completed a set part of which had been taken the first time. There was other testimony along this line, to which no objection was made except to the use of certain words used by Mrs. Fisher as 'Conclusions.' Wills Taylor, another witness for the state, also testified without objection that he and Miller committed both the first and second burglary, and gave as a reason for the second burglary that the 'fence,' where the first lot of silverware had been taken, made some objection because it was not a complete set, and that he and Miller went back to the Fisher home the second time to get the remainder of the set. Taking the record as a whole, we can see no error of which appellant can now complain. Mrs. Fisher also testified without objection that, about a month previous to the first burglary, a man came to her home and asked for a certain number, and that there was no such number on the street. Subsequently she was asked if there was any such number on the street, to which objection was made as being irrelevant and too remote. In view of the prevous answers of the witness, we can see no error in overruling the objection. Mrs. Fisher was then asked to give her best judgment as to whether appellant was the man who made this inquiry, to which objection was made that 'best judgment' was not sufficient; that the witness must say 'it is the man, or the testimony is absolutely incompetent.' The testimony was competent. Counsel's objection went to its weight, which was for the jury.

Certain other witnesses were asked to describe certain articles found in Miller's room, and as to whether or not these articles were burglar's tools. The testimony was competent. Objection was also made to questions answering which it was shown that, while occupying the room where these various articles were found, Miller had registered himself as 'Charles Brenner,' and Willis Taylor as 'William Rose.' We see no error.

Eight assignments of error are predicated upon the testimony of T. D. Page, given on behalf of the state. Page was permitted to testify over objection that he was an attorney, and that Miller had come to him and employed him to obtain Taylor's release from jail about a month previous to Miller's arrest on this information, and as to certain statements Miller then made. This was objected to, upon the ground that it was a confidential communication between attorney and client. Page testified that he had never been employed by Miller to act as his attorney in any matter; that the only employment at this time was that Miller employed him to act in behalf of Taylor, and obtain his release from jail, where he was held under a general charge of suspicion. The fact that this was a month prior to the arrest of appellant on this charge seems to us sufficient to establish the fact, as contended by Page, that he was not acting as Miller's attorney, and that no suggestion was made of any need of his professional services in behalf of Miller, and that the professional relation was created in behalf of Taylor, and not Miller. Under these facts it is clear that any communication made by Miller was not within the rule of privilege. There was nothing to show that Miller was seeking in any way to obtain any professional advice from Page to aid him in defeating any charge made against him in connection with the Fisher burglary. So far as he then knew, no suspicion was directed against him as the perpetrator of these crimes. There was no necessity for seeking his professional aid. Neither was the conversation directed to the Fisher burglary. It related to matters that, in the light of what had transpired in the two Fisher burglaries, made it relevant testimony.

'A communication cannot be considered as privileged because made in professional confidence, unless the person to whom it is made is acting for the time being in the character of legal adviser of the person who makes it. The communication must also be made for the purpose of obtaining professional advice or aid in the matter to which the communication relates.' Flack's Adm'r v. Neill, 26 Tex. 273.

In Earle v. Grout, 46 Vt. 113, it is said: 'The communication, to be privileged, must have been made to the witness confidentially, as his counsel; the relation of counsel and client must have existed at the time, and the communication made for the purpose of obtaining counsel, advice, or direction in regard to his legal rights. It is not required that the witness should have been retained generally in the matter upon which the party was seeking advice; but he must have been counsel upon the subject upon which the conference was had, and the communication made to him as such.'

In 23 Am. & Eng. Ency. Law, 58, the rule is thus stated: 'In order that a communication to an attorney may be privileged, it is absolutely essential that the relation of attorney and client should have existed between him and the person making the communication with reference to the matter to which the communication relates.'

In Hartness v. Brown, 21 Wash. 655, 59 P. 491, and Williams v. Blumenthal, 27 Wash. 24, 67 P. 393, the rule is said to refer to information acquired by an attorney in the course of his employment by a client, relating to the subject thereof, and concerning the transaction between them. Wigmore gives it as an essential that the communication must be relevant to the advice sought, in order to make it privileged. Wigmore on Evidence, § 2292.

The admissibility of this testimony is also supported by 1 Greenleaf on Evidence, §§ 239 and 240; Wharton on Criminal Evidence, § 497; Underhill on Criminal Evidence, § 174.

During the cross-examination of Page by Miller himself, Page had been interrogated as to a statement made to a newspaper man. He was then asked concerning this statement: 'Why did you do it? Answer: I know you to be an unscrupulous thief and a murderer. You told me that yourself. You told me you killed MacMahon.' Miller then moved to have the answer stricken. The record here shows this: 'The Court: Objection sustained, and answer stricken. Mr. Miller: I object to any statement of the witness. The Court: He has answered something that is not asked. Confine yourself to answering the question. Don't argue with the witness.' That part of the court's ruling appearing as 'and answer...