Opinion
Docket No. 967.
Decided April 13, 1967. Rehearing denied June 5, 1967. Leave to appeal denied by Supreme Court August 1, 1967.
Appeal from Oakland; Moore (Arthur E.), J. Submitted Division 2 December 9, 1966, at Lansing. (Docket No. 967.) Decided April 13, 1967. Rehearing denied June 5, 1967. Leave to appeal denied by Supreme Court August 1, 1967.
Reuben Harris, Jr., was convicted of embezzlement. Defendant appeals. Affirmed.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, S. Jerome Bronson, Prosecuting Attorney, and Thomas G. Plunkett, Chief Assistant Prosecuting Attorney, for the people.
Henry Heading, for defendant.
Defendant Reuben Harris, Jr., was convicted in a jury trial of embezzling approximately $10,000 from his employer, Oakdale Resident Co-Op Housing, Inc. Defendant contended that the money was stolen from his automobile while he was in a store on corporate business.
CLS 1961, § 750.174 (Stat Ann 1962 Rev § 28.371).
The sole issue raised on appeal is whether an attorney-client relationship existed between the defendant and Attorney Sydney Barnes, which relationship, if found to exist, would have precluded the attorney from testifying to an exculpatory statement made by defendant.
At trial, in the absence of the jury, defense counsel contended that the defendant was a bailee or agent of Oakdale Resident Co-Op Housing, Inc.; that Sydney Barnes was the attorney for the corporation; and that, therefore, Mr. Barnes in effect was the attorney for the defendant.
The court asked Mr. Barnes if he had ever represented the defendant on personal matters, and received the reply:
"I don't think I represented him in that capacity. I always referred him to an attorney when it came to the point where he needed this kind of representation. I did caution him before he made the statement to me that any statement he would make I would have to disclose to the board."
At the conclusion of this testimony, the trial court allowed Mr. Barnes to testify.
"It is of the essence of the privilege that it is limited to those communications as to which the client either expressly made confidential or which he could reasonably assume under the circumstances would be understood by the attorney as so intended." McCormick, Evidence, § 95, p 190.
The communication in this case was not made in confidence. On the contrary, defendant was specifically informed that any information he divulged would not be kept confidential. Under these circumstances, defendant can not claim the existence of an attorney-client relationship and the court did not err in allowing this testimony.
Judgment affirmed.
T.G. KAVANAGH, P.J., and McGREGOR, J., concurred.