It is the duty of counsel in a criminal case to seasonably call
the attention of the court to any error in impaneling the jury, in
admitting testimony, or in any other proceeding during the trial by
which the rights of the accused may be prejudiced, and, in case of
an adverse ruling, to note an exception, and if counsel fails in
this respect, error cannot be assigned for such causes.
It being shown in a trial on an indictment for murder that on
the day of the disappearance of S. (the murdered man) and of Mrs.
H., her husband and his relatives were seen, armed with guns and
pistols, hunting for S. and Mrs. H., who were supposed to have
eloped together, the declarations at that time of H. as to his
purpose in doing so were part of the
res gestae, but this
Court does not decide whether it was error to rule them out.
Statements regarding the commission of a crime already
committed, made by the party committing it to an attorney at law
when consulting him in that capacity, are privileged
communications, whether a fee has or has not been paid and whether
litigation is pending or not.
The rule announced in
Queen v. Cox, 14 Q.B.D. 163,
should be limited to cases where the party is tried for the crime
in furtherance of which the communication is made.
The case is stated in the opinion.
MR. JUSTICE BROWN, after stating the facts as above, delivered
the opinion of the Court.
This was a writ of error sued out under the sixth section of the
Act of February 6, 1889, 25 Stat. 655, 656, c. 113, § 6, to review
a judgment of the Circuit Court of the United States for the
Western District of Arkansas imposing a sentence of death upon the
plaintiff in error for the murder of David C. Steadman "at the
Creek Nation in the Indian country."
Page 138 U. S. 354
The plaintiff in error relied upon the following grounds for
reversal:
1. That the court erred in its selection of the jury in that the
defendant was required to make his challenges without first knowing
what challenges the government's attorney had made, and thus
challenged two jurors, to-wit, C. F. Needles and Samuel Lawrence,
who were also challenged by the government, whereby he was deprived
of two of his challenges contrary to law.
2. That the court erred in excluding the testimony offered by
the defendant to prove threats to kill Steadman made by House and
others, while they were hunting Steadman under the belief that he
had seduced the wife of the said House and was secreting himself
with her in the neighborhood.
3. Because the court erred in admitting the testimony of J. G.
Ralls as to confidential communications made to him as the attorney
of the defendant.
(1) With regard to the first error assigned, it appears from the
record that
"the court directed two lists of thirty-seven qualified jurymen
to be made out by the clerk, and one given to the district attorney
and one to the counsel for the defendant, and the court further
directed each side to proceed with its challenges independent of
the other, and without knowledge on the part of either as to what
challenges had been made by the other, to which method of
proceeding in that regard defendant at the time offered no
objections, but proceeded to make his challenges, and in so doing
challenged two jurors, to-wit, C. F. Needles and Samuel Lawrence,
who had been also challenged by the government."
We do not deem it necessary to inquire whether there was error
in the method pursued by the court in impaneling this jury. It
appears distinctly from the bill of exceptions that the defendant
offered no objection to it at the time, and made no demand to
challenge any of the jury beyond the twenty allowed by Revised
Statutes, section 819. Indeed, it does not clearly appear which
side made the first challenges, or that defendant had not exhausted
his challenges before the government challenged the two jurors in
question. If it were a fact that the defendant
Page 138 U. S. 355
had made his twenty challenges before the government challenged
these two men, it is difficult to see how his rights were
prejudiced by the action of the district attorney.
But the decisive answer to this assignment is that the attention
of the court does not seem to have been called to it until after
the conviction, when the defendant made it a ground of his motion
for a new trial. It is the duty of counsel seasonably to call the
attention of the court to any error in impaneling the jury, in
admitting testimony, or in any other proceeding during the trial by
which his rights are prejudiced, and in case of an adverse ruling,
to note an exception.
Stoddard v.
Chambers, 2 How. 284;
De Sobry
v. Nicholson, 3 Wall. 420;
Canal Street
Railroad v. Hart, 114 U. S. 654;
Thompson on Trials, §§ 690, 693, 700.
(2) To understand fully the force of the second error assigned,
it is necessary to state so much of the evidence as exhibits
substantially the case made out by the government. The evidence
tended to show that the defendant and the deceased, Steadman, had
agreed to go into the stock business together, and, upon the day of
the murder, were endeavoring to rent a farm for the purpose of
wintering their horses and making a crop the following year. They
were returning to their camp, both armed with guns. Defendant was
also armed with a pistol. So far as the evidence discloses,
Steadman disappeared, and was never seen alive again. A few minutes
after they were last seen, a witness who had met them saw the two
horses, without riders, standing in the road near a wood. Shortly
after, eight or nine shots were heard in the wood, and after this
the defendant was seen upon the road, sitting upon one of the
horses and leading the other, which had no rider. In about twelve
days, the body of Steadman was found half a mile from the place
from where he and defendant had been seen, and within seventy-five
yards of the place where the horses were seen standing. His skull
was crushed, and there was a bullet hole in it back of the ear.
There was also evidence that Steadman had a large amount of money
on his person at the time he disappeared. The defendant offered
contradictory explanations of Steadman's disappearance. At
Page 138 U. S. 356
one time, said he had probably been killed, and at another time
suggested suicide, and at another pretended to believe a story that
had been circulated in the neighborhood that Steadman and a married
woman by the name of House had disappeared, and were hiding
together. Evidence was admitted tending to show that Mrs. House and
Steadman had been seen in conference the day before, and that the
general impression in the neighborhood at the time was that they
had gone off together. House and his friends had armed themselves
with guns and pistols and had ridden through the country hunting
for them under the belief that they were hiding together in the
neighborhood or had fled the country together.
Now if evidence was admitted to show that House had armed
himself and was hunting for Steadman under the impression that the
latter had eloped with his wife and was secreting himself in that
vicinity, it is difficult to see upon what principle his threats in
that connection were excluded. Accepting the theory of the
government that mere threats, unaccompanied by acts of a
threatening nature, were irrelevant to the question of defendant's
guilt, it is not easy to understand how the acts themselves could
be made pertinent without testimony tending to show the reason why
House had armed himself and, with other parties, was scouring the
country for Steadman. Their statements in that connection would be
clearly illustrative of the act in question, and a part of the
res gestae, within the rule laid down in
Lord George
Gordon's Case, 1 Greenl.Ev. § 108, and within all the
authorities upon the subject of declarations as part of the
res
gestae.
At the same time, we recognize a certain discretion on the part
of the trial judge to rule out this entire testimony, both of the
acts and the declarations of House, if, in his opinion, they were
so remote or insignificant as to have no legitimate tendency to
show that House could have committed the murder. If, for instance,
it were clearly proven that the murder was committed before the
threats of House were uttered, or the two occurrences were so
remote in time and place as to demonstrate that there could have
been no connection between them, it would be the duty of the court
to exclude the testimony.
Page 138 U. S. 357
But if, on the other hand, the time and the circumstances
attending the murder were uncertain or obscure, the conduct and
threats of House might have a material bearing upon the
identification of the murderer. It is held by some of the
authorities that the question whether such evidence should be
admitted or excluded is, to a certain extent, a matter of
discretion with the trial judge.
Shailer v. Bumstead, 99
Mass. 112;
Thayer v. Thayer, 101 Mass. 111;
Commonwealth v. Abbott, 130 Mass. 472;
Commonwealth v.
Ryan, 134 Mass. 223;
McInturf v. State, 20 Tex.App.
335.
In the present case, however, it is assumed, both in the
exception noted to the exclusion of the testimony and in the briefs
of counsel, to have been proven as a fact by the witness Terry that
on the day of the disappearance of Steadman and Mrs. House, he saw
Samuel House, her husband, and several others, relatives and
friends of House, riding around the neighborhood armed with
Winchester guns and pistols, hunting for deceased and Mrs. House,
who were then believed to have eloped together, or to be secreting
themselves in the neighborhood, and although the testimony of
Terry, as set forth in the bill of exceptions, fails to support
this statement or to show definitely what he did intend to swear
to, yet, assuming it to be as stated, we think that if it were
shown that House was in search of Steadman, his declarations as to
his purpose in so doing stand upon the same basis with regard to
admissibility as his conduct, and were a part of the
res
gestae. But in the view we take of the next assignment, we
find it unnecessary to determine whether there was such error in
ruling out this testimony as to require a reversal.
3. The third assignment relates to the admission of the
testimony of J. G. Ralls, an attorney at law, to which objection
was made upon the ground that it related to a confidential
communication made by the defendant, who had consulted Ralls as an
attorney at law, and was therefore privileged. Ralls stated in
substance that he was practicing law at Muscogee; that defendant
came to his office there between the time of Steadman's
disappearance and the finding of his body,
"and asked me if I was an attorney. I told him I was. He
Page 138 U. S. 358
said his name was Alexander, and he went on to state that he and
his partner had some forty head of horses across the river, in
partnership, and that some time before that, probably a week
before, his partner was missing, and he hadn't heard from him. He
says his partner had a brother in California, and he was afraid his
brother would come up there and make some trouble about the horses.
He stated at the time his partner had taken off the money, and he
wanted to know if he could hold the horses so as to secure his part
of the money. I asked him if the horses would pay him for his part,
and he said they would. I told him to hold the horses. They could
not take them until that was settled."
It is evident from this statement that defendant consulted with
Ralls as a legal adviser, and while, if he were guilty of the
murder, it may have had a tendency to show an effort on his part to
defraud his partner's estate and to make profit out of his death by
appropriating to himself the partnership property, it did not
necessarily have that tendency, and was clearly a privileged
communication. If he consulted him in the capacity of an attorney,
and the communication was in the course of his employment, and may
be supposed to have been drawn out in consequence of the relations
of the parties to each other, neither the payment of a fee nor the
pendency of litigation was necessary to entitle him to the
privilege.
Williams v. Fitch, 18 N.Y. 546;
Britton v.
Lorenz, 45 N.Y. 51;
Bacon v. Frisbie, 80 N.Y. 394;
Andrews v. Simms, 33 Ark. 771.
In the language of Mr. Justice Story, speaking for this Court in
Chirac v.
Reinicker, 11 Wheat. 280,
24 U. S.
294:
"Whatever facts therefore are communicated by a client to a
counsel solely on account of that relation, such counsel are not at
liberty, even if they wish, to disclose, and the law holds their
testimony incompetent."
We are referred, however, to the case of
Queen v. Cox,
14 Q.B.D. 153, as holding the doctrine that where a communication
is made to counsel in furtherance of a scheme to commit a crime,
the client is not entitled to the privilege. This was a Crown case
reserved and argued before ten judges of the
Page 138 U. S. 359
Queen's Bench Division. The defendants Cox and Railton were
indicted for a conspiracy to defraud one Munster. The facts stated
show that Munster had obtained a judgment against Railton in an
action for libel, upon which an execution had issued, which the
sheriff proposed to levy upon the defendant's stock in trade. He
was met, however, by a bill of sale from Railton to Cox, the other
defendant, antedating the execution. It was claimed that the bill
of sale was fraudulent, and made for the purpose of depriving
Munster of his rights under the judgment, and Railton and Cox were
indicted for conspiracy. The question was whether an interview had
by Railton and Cox with Goodman, a solicitor, as to what could be
done to prevent the property from being seized under execution was
competent evidence, or was a privileged communication. No point was
made that Goodman was not consulted as an attorney. The court
unanimously held that the evidence was competent. Mr. Justice
Stephen, who delivered the opinion of the court, said in a very
exhaustive discussion that the question was
"whether if a client applies to a legal adviser for advice
intended to facilitate or to guide the client in the commission of
a crime or fraud, the legal adviser being ignorant of the purpose
for which his advice is wanted, the communication between the two
is privileged. We expressed our opinion at the end of the argument
that no such privilege existed. If it did, the result would be that
a man intending to commit treason or murder might safely take legal
advice for the purpose of enabling himself to do so with impunity,
and that the solicitor to whom the application was made would not
be at liberty to give information against his client for the
purpose of frustrating his criminal purpose."
After citing and commenting upon a large number of cases, he
comes to the conclusion that if the communication be made in
furtherance of any criminal or fraudulent purpose, it is not
privileged. This case, however, is clearly distinguishable from the
one under consideration in the fact that the solicitor was
consulted with regard to a scheme to defraud for which his clients
were subsequently indicted and tried, and the testimony was offered
upon that trial, while in this case, the consultation
Page 138 U. S. 360
was had after the crime was committed, and was offered in
evidence as an admission tending to show that defendant was
concerned in the crime, or rather as a statement contradictory to
one he had made upon the stand. Had he been indicted and tried for
a fraudulent disposition of his partner's property, the case of
Queen v. Cox would have been an authority in favor of
admitting this testimony, but we think the rule announced in that
case should be limited to cases where the party is tried for the
crime in furtherance of which the communication was made.
Had the interview in this case been held for the purpose of
preparing his defense, or even for devising a scheme to escape the
consequences of his crime, there could be no doubt of its being
privileged, although he had made the same statement that his
partner was missing and he had not heard from him. Now, the
communication in question was perfectly harmless upon its face. If
it were true that his partner was missing, and he had not heard
from him, and that Steadman had taken off the money, there was no
impropriety in his consulting counsel for the purpose of
ascertaining if he could hold the horses, so as to secure his part
of it. Ralls asked him in that connection if the horses would pay
him for his part, and defendant said they would. He then told him
to hold the horses; that they could not take them until that was
settled.
It is only by assuming that he was guilty of the murder that his
scheme to defraud his partner becomes at all manifest. His
statement that his partner was missing and that he had not heard
from him is the only material or relevant part of the conversation,
and was plainly privileged.
The judgment of the court below must be reversed, and the
case remanded for a new trial.
MR. JUSTICE GRAY was not present at the argument, and took no
part in the decision of this case.