State v. Perry , 4 Idaho 224 ( 1894 )

MOEGAN, J.

(After Stating the Facts.) — The first error nelied upon in defendant’s brief is, the court erred in oveTTuling defendant’s motion for a new trial on account of the insufficiency of the indictment to support a conviction of murder in the first degree. I insert the charging part of the indictment, so that it may be seen what it does charge. It will be noticed that the indictment charges that the beating with ihe hatchet, which is alleged to be a deadly weapon, was done willfully, feloniously, and unlawfully, premeditatedly, deliberately, and with his malice aforethought, and with intent him, the said Patrick McNamara, to kill and murder, did then and there strike, beat, etc.,'inflicting a mortal wound, of which he, the said McNamara, then and there immediately died. This indictment charges deliberation, premeditation, with the intension, and all the necessary words to make a complete indictment as laid down in our statute (Rev. Stats., sec. 7677), and •as explained and construed in Territory v. Evans, 2 Idaho, 425, 17 Pac. 139, and supplies the very words wanting in the indictment in the case of People v. O’Callaghan, 2 Idaho, 156, 9 Pac. 414. The indictment seems to be entirely sufficient, and charges murder in the first degree.

The third error assigned is really the one on which the defendant relies for a reversal of this case. This as given in his brief is as follows: The court erred in overruling the defendant’s motion for a new trial on account of improper and illegal and inadmissible evidence being received on the trial, to wit, of Garrett Sullivan, George Boss, S. C. Winters, Lyman Fargo, and I. H. Moore, all of whose testimony was received over the objection of the defendant’s counsel. I have inserted this testimony in full,' so that we may see just what these witnesses testified to. I also inserted the defendant’s attorney’s statement of this testimony, which is in his third specification of error, and is in the record, and as much a part of it as the testimony of the witnesses, because it differs so materially from the evidence as given in the bill of exceptions, showing that ■even the testimony of these witnesses is not given in full but only an abstract thereof. Upon stating these alleged errors, the attorney for the defendant proceeds to give a history of the life of J. Ed Smith, of a crime he was alleged to have committed, his practice, his alleged shortcomings, etc., and then proceeds to give the biography of Charles Phelps, a witness who was a prisoner with the defendant Perry at the time of, and immediately before, the trial of the defendant. This is a very ingenious method of leading the court off the main ■ease, and on to the trial of another, and entirely different case from the one before the court. We must insist on stieldng to the trial of Charles Perry, and decline to try J. Ed Smith until he is regularly before the court, when he might wish to bring in some evidence in his own defense, which he cannot now do. The defendant’s attorney objected to the testimony ■of the witnesses before named because it was evidence of the acts and doings of J. Ed Smith, the attorney and confidential adviser of the defendant when the acts were performed. Not a word that Smith uttered during the whole time that he was ■defendant’s attorney was permitted to be proven, except an unimportant sentence, which he uttered when the sheriff, Sullivan, found the money, which was, “That is my client’s money.” It is unquestionably the law that confidential communications made to the attorney Smith by his client, Perry, should not be disclosed by Smith, nor can the court compel him to disclose whatever may have been told him while he was the attorney of Perry; but it is very different with regard to the acts of Smith, even if they tend to convict Perry of the crime with which he is charged. It appears from the record that Boss, ■deputy sheriff, and Sullivan, sheriff, shadowed Smith after he was employed as the attorney of the defendant; that is, they watched him and followed him to Lava, on the Oregon Short. Line Eailroad. It also appears that the house of McNamara,, the murdered man, wherein he was murdered, was but a short, distance from Lava station. They went there at night, and,, going np the track a short distance, the sheriff and his deputy-surprised Smith digging about the fence post; that after they came upon him they went to digging, and the sheriff discovered a handkerchief with sixty dollars in gold in it. What evidence the court and jury had as to the ownership of this money we dn not know, as but a small part of the evidence is before this court. For aught the court knows, it might have been proven that the deceased had three twenty-dollar gold pieces just before the killing; the presumption of law is that the court had. evidence before it sufficient to show, or tending to show, that it belonged to the murdered man. After the finding of the money, Perry, the defendant, tells Phelps, his fellow-prisoner,, that he had told Smith where this money was; that Smith had demanded his fee, and he had nothing else to pay him with.. There is not one word of testimony in the record showing that Smith had told the sheriff or the district attorney that he was going after this money, nor is there any evidence whatever tending to show that he had given them any information that he knew where there was money, or that he had intimated that they would better watch him. There is no evidence in this transaction of finding this money which even tends to show that up to this time Smith had in any way betrayed his trust.. The presumption of law is that he was faithful to his client,, and this must be overcome with proof. It is clear that if the defendant had been discovered in digging up this money it could have been proven. The acts of Smith in digging for this money are no more sacred than are the acts of the defendant. The communication of the defendant to his attorney, the attorney cannot be forced to reveal; but the acts of both the defendant and his attorney, which are relevant to the case, can be-proven to the fullest extent. So of statements made to his attorney" by his client. Statements made to an attorney by a client, concerning a case about which he is consulting his attorney, the conrt cannot compel the attorney to disclose; but if-such statements are overheard by a third party, accidentally or otherwise, the latter may be made a witness, and compelled to disclose the statements. (See Hoy v. Morris, 13 Gray, 519, 74 Am. Dec. 650.) This was a breach of promise case. Todd was the attorney for the defendant. Defendant told Todd, his ■counsel, that he had some real estate in Mendon which he wanted to convey to Ferguson, and that he was afraid that a girl would sue him for breach of promise. This conversation was overheard by Aldrich, who was in an adjoining room. It was proposed to prove it by Aldrich, and was objected to as being a confidential communication between attorney and ■client. The court says Aldrich was not an attorney nor in any way connected with Todd. He was a mere bystander, and casually overheard the conversation not addressed to him, nor intended for his ear, but which the client and his attorney meant to have respected as private and confidential. Mr. Todd could not lawfully have revealed it, but, in consequence of a want of precaution, the communication between him and his client was ■overheard by a mere stranger. As the latter stood in no relation of confidence to either of the parties, he was clearly not within the rule of exemption from giving testimony, and he might therefore be summoned as a witness, be compelled to testify to what he overheard, so far as it was pertinent to the subject matter on inquiry upon the trial. In Hatton v. Robinson, 14 Pick. 416, 25 Am. Dec. 415, it was held that communications made to an attorney at law, by a party who applied to him to make a conveyance of his personal property for the purpose of preventing it from being attached by a portion of his •creditors, were competent and admissible evidence. So if when the defendant told his attorney, Smith, about this money that was buried at or near the murdered man’s house, the conversation had been overheard by one of the prisoners, or any other person, he could be compelled to testify to it. In Shields v. State, 104 Ala. 35, 53 Am. St. Rep. 17, 16 South. 87, defendant was prosecuted for carrying concealed weapons, and convicted. It appears that the defendant had called at the jail to •see a cousin there confined. The sheriff, before permitting him to go in, searched him against his consent, and found the pistol for carrying which he was prosecuted. The court say the search was unlawful, yet the evidence obtained by the unlawful search belonged to the state, and the sheriff could be compelled to testify to the finding of the pistol, and proceeds as follows: “The defendant made no admission or confession. He was simply the unresisting victim of unlawful violence, and,, if he had made an admission or confession, its exclusion would have been unavoidable, because not free and voluntary.” In State v. Flynn, 36 N. H. 64, the court says: “It seems to us an unfounded idea that the discovery made by the officers and their assistants in the execution of process, whether legal or illegal, or where they intrude upon a man’s privacy without any legal warrant, the information thus obtained is not the admission of the party, nor evidence given by him, in any sense. The party has in his power certain mute witnesses, as they may be called, which he endeavors to keep out of sight, so they may not disclose the facts which he desires to conceal. By force or fraud access is gained to them, and they are examined to see what 'evidence they bear. That evidence belongs to the state. If the party should have the power to keep out of sight or out of reach of persons who can give evidence of facts he desires to suppress, and he attempts to do that, and is defeated by force or cunning, the testimony given by such witnesses is not his testimony nor evidence which he has been compelled to furnish against himself. It is their own. It does not seem to us possible to establish a sound distinction between that case and the case of the counterfeit bills, the forger’s implements, the false keys or the like, which have been obtained by similar means.”

In the case at bar there could be no conspiracy to betray the prisoner, unless there were two persons in this conspiracy, as one cannot cons2)ire alone. We must not only have evidence that Smith betrayed his client, of which, in my opinion,we have none, as all the circumstances connected with obtaining this evidence may be explained. It may have occurred through the carelessness or even ignorance of the attorney, and not through any desire or intention to betray his client; want of care on the part of Smith may have led him into any or all of the mistakes that gave away this evidence; but, in order to have, a conspiracy, we must believe that the prosecuting attorney was also in the conspiracy to' obtain the evidence in this way, of which we again-have no evidence. We cannot reverse a case on an inference or-an impression. We must have positive evidence of error, as ail intendments are in favor of the proceedings of the court below, and it must be presumed that everything was done to give the defendant a fair and impartial trial, unless the contrary affirmatively appears in the record itself. There is no evidence, as I have said, that the state had anything to do with the acts of Smith by means of which this evidence was obtained, and the evidence is entirely proper, in the absence of a conspiracy between the state and the defendant’s attorney. In the case of Shields v. State, supra, where the searching of the defendant was illegal, the court further says: “The law appoints the remedy for the redress of the wrong, but the exclusion of the evidence is not within the scope of the remedy or the measure of redress. Evidence is not infrequently obtained by methods which are reprehensible in good morals, offensive to fair dealing, subjecting it to unfavorable inferences; the party relying upon it must neutralize to entitle it to full credence, and evidence is sometimes obtained under circumstances which meet with the unqualified disapprobation of the courts. The evidence, however unfairly and illegally obtained, is not subject to exclusion, if it-be of facts in themselves relevant, except when a party accused of crime has been compelled to do some positive affirmative act inculpating himself, or an admission or confession has been extorted from him by force, or drawn from him by appliances to his hopes or fears.” (1 Greenleaf on Evidence, 254a; Commonwealth v. Dana, 2 Met. (Mass.) 329-337; State v. Flynn, 36 N. H. 64; Gindrat v. People, 138 Ill. 103, 27 N. E. 1085; Cotton v. State, 87 Ala. 75, 6 South, 396.) The case of Commonwealth v. Dana, supra, was the seizure of lottery tickets illegally kept for .sale. The seizure was made under a search-warrant asserted to be illegal and void. The court sustained the validity of the warrant but, in answer to the objections proceeding on the invalidity of the warrant and the consequent illegality of the search, said: “Admitting that the lottery tickets and materials were illegally seized, still this is no legal objection to the admission of them as evidence. If the search-warrant were illegal, or if the officer serving the warrant exceeded his authority, the party on whose complaint the warrant issued, or the officer, would be responsible for the wrong done. But this is no good reason for excluding the papers seized as evidence, if they were pertinent to the issue, ;as they unquestionably were. When papers are offered in evidence, the court can take no notice how they were obtained— whether lawfully or unlawfully — nor would they form a collateral issue to determine that question. This point was decided in the cases of Legatt v. Tollervey, 14 East, 302, and Jordan v. Lewis, 14 East, 306, note; and we arc entirely satisfied that the principle on which these cases were decided is sound and well established. We adhere to the proposition to be extracted from the authorities to which we have referred — that, however unfair or illegal may be the methods by which evidence may be obtained in a criminal case, if relevant, it is admissible, if fhe accused is not compelled to do any act which criminated himself, or a confession or admission is not extorted from him, or drawn from him by appliances to his hopes and fears. The objections to the admissibility of the evidence were properly overruled.” (Shields v. State, supra.) In the case of People v. Barker, 60 Mich. 277, 1 Am. St. Rep. 501, and note, 27 N. W. 539, when Pinkerton, a detective was introduced to the defendant Barker as a distinguished attorney, by the name of ‘Trade, from Chicago, and the defendant was advised to employ him, said Pinkerton, alias Trade, as his attorney, it was done. Pinkerton as such attorney then advised confession of certain matters. The Barkers, defendants, were brothers. Pinkerton advised Marshall Barker what story he should tell, which was that he, Marshall killed the deceased in self-defense, and that he got William to help him carry off the body. This the pretended attorney told him would get William off with a light sentence and clear him entirely. Having gained the confidence ■of the defendants in this way, he secured the confession. The ■court held that Pinkerton, having personated an attorney, could not be permitted to testify to the confessions so obtained. After the confessions so made, the Barkers conferred with one ■another, being confined in different parts of the jail, by writing letters back and forth, in which certain facts were stated that were pertinent evidence. These letters were secured by the sheriff, and sought to be introduced as evidence. Although the writing of these letters resulted from their interviews with Pinkerton, they were admitted as evidence, and this was approved by thq supreme court. From all these cases it very clearly appears that while the communications between counsel and client cannot be revealed by the counsel, nor, as stated, can the counsel be compelled to testify to them on the trial, if these statements are overheard by a third party, either by eavesdropping or by accident, the third person so hearing them can be compelled to testify to them. All the acts of the attorney maybe proven as fully as though they were the acts of the defendant himself. It follows, then, that the acts of Smith were all proper evidence, at least in the absence of proof that there was a conspiracy between the district attorney and the attorney, Smith, to procure confessions by deceit in capacity of attorney and then give them away to the prosecution. It is also a well-settled principle of law that, where testimony is prima facie competent and relevant, the burden of showing by competent evidence that it should not be admitted is upon the defendant. This the defendant in this case, as appears by the record, made no effort whatever to do. No questions of any kind were asked of the witnesses, Sullivan and Eoss, as to what reason they had for shadowing J. Ed. Smith, or as to whether he had given them any intimation whatever, either by word or deed, that he had information which might be of advantage to the prosecution. The same is true as to S. O. Winters. He was not questioned by the defendant’s attorney upon this point. It is apparent that this might have been fully proven by these witnesses if they had been interrogated on the subject and if it had been a fact.

What kind of evidence must we have in order to convict Smith of having deliberately betrayed his client? There is no positive evidence that he betrayed him. In my view of the case, there is not circumstantial evidence sufficient to work such conviction, so far as this record goes. What other evidence of his perfidy there may be outside of the record I do not know, and I do not propose to inquire. If the circumstances connected with the acts of Smith are such that they can be explained upon any other reasonable hypothesis than the one that Smith was guilty of conspiring to betray his client, it is the duty of the court to so explain them. Smith was and is one of the officers of the court. It is the presumption of law, and therefore the presumption of this court, that Smith, so far as he went in this case, performed his duties as well as he knew how, and faithfully. This presumption must be overcome by evidence. A careful reading of the testimony in this case will, I think, fail to show it. As is stated, nothing derogatory to Smith can be presumed from the fact that he went to see the district attorney when he went to Pocatello, or that he stayed overnight with him while there. All the rest of the circumstances may have happened through the inadvertence of Smith, or carelessness or ignorance, if you pleace. His acts in getting the bill changed were proper evidence, the same as they would be if they had been the acts of Perry. Say that he was careless, ignorant, and that the public prosecutor saw this, and took advantage of it, still the evidence was proper. The same may be said of his acts in going down to dig up the money. Admit the further fact that the district attorney was present with the sheriff and deputy on this occasion, still the evidence is perfectly proper. It is entirely proper if the district attorney thought it necessary that he should be present with the sheriff when they were watching Smith, and does not militate against the evidence in the least. As I have already said, we must believe that the prosecutor was a party to this conspiracy to betray the defendant also, in order to convict Smith, of which there is no evidence. Indeed, I think we may be justified in holding that the guilt of Smith, in the betrayal of his cient, must appear from the evidence in this record beyond a reasonable doubt, in order to reverse the case on that ground. The evidence that Smith obtáined this bill from the prisoner is also furnished by the confession of Perry to the witness Phelps, which was entirely voluntary, and no objection is made to this evidence. So with the testimony of Phelps that Perry told him that he had told Smith where the money was buried. Again, there is only a small part of the record in this case here; only a part of the testimony of five witnesses, and there were ten testified. The presumption is that everything was done in the court below to give the defendant a fair and impartial trial. The presumption is also that there was sufficient, pertinent, and competent evidence to support the verdict of the jury and to work a conviction. (People v. Williams, 45 Cal. 25; Territory v. Evans, 2 Idaho, 425, 17 Pac. 139.) Where the testimony of the court below is not in the record, it is well settled that in such case this court is bound to presume that the testimony was in every respect sufficient to support the verdict. All presumptions are in favor of the court below. (Miles v. Thorne, 38 Cal. 337, 99 Am. Dec. 384, and note.) All presumptions are in favor of the correctness of the proceedings of courts of general jurisdiction. (Parker v. Altschul, 60 Cal. 381; White v. Abernathy, 3 Cal. 426; Toulouse v. Burkett, 2 Idaho, 288, 13 Pac. 172; Lowe v. Turner, 1 Idaho, 107.) All intendments must be in favor of sustaining the judgment of courts of original jurisdiction, and, to disturb such judgment, it is not enough that error may have intervened, but it must be affirmatively shown by the record. (Goodman v. Milling Co., 1 Idaho, 131.) Can we-overcome all these presumptions of law by supposing or inferring from the circumstances that Smith betrayed his client willfully, premeditatedly, and upon such evidence as we have in this case? I must dissent strenuously from such conclusion. I must say, as to the guilt of Smith and the complicity of the district attorney, “Not proven.”

Since the hearing in this case the attorney for the defendant has sent this court a private letter, accompanied by two affidavits. Copies of these affidavits have not been served upon the attorney for the state. He is entirely ignorant of their existence. The court cannot even read affidavits presented in this way. They were evidently intended to affect the judgment of this court. It would be manifestly improper for the court to permit such attempts to influence its judgment. I acquit the attorney who managed this case of any thought of doing anything improper, and attribute the circumstance above stated to excessive zeal in behalf of his client. The record in this case shows that the defendant was not without able assistance in this cause; indeed, it shows that the attorney appointed to conduct the defense did his duty with marked ability and much persistence. The judgment of the lower court is affirmed, and the district court is directed to take the necessary steps to put the judgment in execution.