Reed v. State , 248 Ala. 196 ( 1946 )

In Barnett v. State, 89 Ala. 165, 7 So. 414, 415, it is said:

"The general rule unquestionably is that the advice of counsel can afford no protection against the punitive consequences of criminal acts. Whatever the rights of a defendant are in respect to the doing of the act charged, they are available to him in defense, whether he was advised of them or not; and no amount of assurance, even from those learned in the law, of the existence of rights in the premises, which in point of fact do not exist, can justify or excuse an act otherwise criminal. The giving of such assurance or advice neither increases nor diminishes criminality in any degree, and evidence of it is therefore irrelevant. Weston v. Com., 111 Pa.St. 251, 2 A. 191.

"One of the exceptions to the general doctrine is found in those cases of alleged perjury, in which the truth or falsity of the matter charged as being willfully and corruptly false is a mixed question of law and fact. If, in such case, the facts are fully and in good faith laid before counsel, and upon them he advises, as a matter of law, that a certain statement may be made which will be the truth, and, acting on this advice, the client swears to the statement believing he has been correctly advised, it cannot be said that this oath is willfully and corruptly false, and hence a charge of perjury can not be predicated upon it. Instances of this kind usually occur with respect to affidavits, the truth of which depend upon some question of law, — as for attachment, where the question is fraud vel non in the disposition of property by the debtor; or in a bankrupt's schedule, — and he is wrongly advised that certain property may be omitted, etc. United States v. Conner [Fed.Cas. No. 14,847] 3 McL. C.C. 573; Hood v. State, 44 Ala. 81; State v. McKinney, 42 Iowa 205; United States v. Stanley [Fed.Cas. No. 16,376] 6 McLean 409."

The opinion of the Court of Appeals is not to be understood as erecting erroneous advice of counsel into a legal barrier against guilt. On mixed questions of law and fact, advice of reputable counsel given on full disclosure of the facts and followed in good faith, would be a matter to be considered by the jury in determining defendant's guilt. Barnett v. State, supra; Shushan v. U.S., 5 Cir., 117 F.2d 110, 133 A.L.R. 1040, and note p. 1055; Rush v. State, 95 Tex.Cr.R. 464, 255 S.W. 403; 36 C.J. 888. See also Krasner v. State, Ala.Sup., 26 So.2d 526.

Interpreting, as we do, the opinion of the Court of Appeals to come within the above statement of the rule, the writ of certiorari is due to be, and is, denied.

Writ denied.

GARDNER, C. J., concurs.

LAWSON, SIMPSON and STAKELY, JJ., concur specially.

BROWN and FOSTER, JJ., dissent.