Jones v. State , 65 Miss. 179 ( 1887 )

Arnold, J.,

delivered the opinion of the Court.

It was right to sustain the objections made to the questions-propounded to the witness, Dave Love, on cross-examination, as to whether he had not, at various times, made different and contradictory statements, to different persons, in regard to the matters as to which he had testified on his examination in chief, because the time, place and persons involved in the supposed contradictions were not specified in the questions. 1 Greenleaf Ev., Section 462; Fulton v. Hughes, 63 Miss., 61.

But the witness should have been allowed and required to answer the question in relation to what he had told his counsel, whether the objection to the same was made by him, or by the Court of its own motion, for him.

The act of an accomplice in testifying for the State, so as to criminate himself with others, is voluntary. He could not be compelled to do so. He testifies for the State, under a promise of favor, express or implied, on condition that he will make a full statement and confession in regard to the matter. His testimony comes in such a questionable shape, that it should, in the interest of truth and justice, be subjected to the severest scrutiny and acted on with the greatest caution. There is no-case in which cross-examination is more desirable or important-to test the credit of a witness, than that in which one man is seeking to save his own life or liberty, by swearing away the life or liberty of others.

Communications between a client and his attorney or legal adviser, are privileged from exposure, without reference to whether proceeding are pending or in contemplation, and neither can bo required to disclose such communications, unless the client consents. 1 Whart., Ev., Sections 583, 581. Such privilege-is created for the benefit and protection of the client, and if he-waives it, there is no ground for such protection. While the privilege may be waived by the client, it is generally held that-he does not do so merely by becoming a witness and testifying in his own behalf.. Duttenhofer v. The State, 34 Ohio, 91; Bigler v. Beyher, 43 Ind., 112 ; Barker v Kuhn, 38 Iowa, 395; Bobo v. Bryson, 21 Ark., 387; State v. White, 19 Kan., 445; Whart. Cr. Ev., Sec. 499.

But when one jointly indicted with others, turns States evidence, and attempts to convict others by testimony which also-convicts himself,' the rule must be different, and he has no right to claim any privilege concerning any of the facts pertinent to the issue, nor any exemption from the broadest latitude of cross-examination. He thereby waives all privileges against criminating himself and against disclosing communications between himself and his counsel touching the offence charged. Both client and counsel, may in such case, be compelled to disclose such communications. Alderman v. People, 4 Mich., 414; Foster v. People, 18 Mich., 266 ; Hamilton v. People, 29 Mich., 173.

The reason for maintaining such privileges ceases, when one has voluntarily exposed himself by his own testimony, to the very consequences from which it was intended by the privilege to protect him. To preserve such privilege in such case would be worse than vain, for while it could not help the witness, it might, by withholding the only means of contradicting and impeaching him, operate with the greatest injustice towards the party on trial.

The judgment is reversed and the cause remanded.