Opinion
August Term, 1858.
One charged with a crime, who turns State's witness against his associates, under an assurance that his disclosures are not to be used against him, may be cross-examined as to what he told counsel about the offense, while he was himself charged.
INDICTMENT for PASSING COUNTERFEIT MONEY, tried before DICK, J., at the Fall Term, 1857, of Caldwell Superior Court.
Attorney General, for the State.
Gaither, for the defendant.
The allegation on the part of the State was, that the defendant passed to one Robert Nicholson, a counterfeit ten dollar bill on the bank of Cape Fear. Nicholson was called as a witness, who testified that himself and the defendant were associated together in the business of passing counterfeit money; that they went to Morganton on this business; that the bill in question was furnished to him with that purpose, and that he did pass the same in Mr. Erwin's store, in that place; that he then went to the defendant and got three more ten dollar bills; that in attempting to pass one of these, he was detected and taken before a Judge, who was then holding the Superior Court of Burke county, upon the question of commitment; that he employed Mr. Gaither, a gentleman of the bar, to advise and assist him professionally on that occasion. He went on to disclose minutely the instances in which they had co-operated in carrying on the business, out of which disclosure, several objections were raised, but are not material to be stated, as they are anticipated by the view of the case taken by this Court.
On his cross-examination, Nicholson, the witness, was asked in relation to certain statements which he made to his counsel, Mr. Gaither, about the bill in question, when he carried it to Mr. Erwin's store, and whether he then said that he had got it from the defendant.
The Solicitor objected to this inquiry, upon the ground that what took place on that occasion, between himself and his counsel, was confidential, and could not be called out, either from him, or his attorney. The Court sustained the objection, and the evidence was excluded. Defendant excepted.
Verdict for the State. Judgment and appeal by the defendant.
There is error. The rule that communications between client and attorney are confidential, and shall not be disclosed, does not embrace within its operation, the question of evidence presented by this case. The principle upon which the rule is founded is this: No man is required to criminate himself. The relation of attorney and client has existed, and has been fostered, as necessary to the due administration of the law, in every civilized country. And, in order to give full effect to the benefit of this relation, and encourage a free and full disclosure on the part of the client, it was necessary to adopt the rule, that, as he could not be called on to criminate himself, so, communications made to his attorney should not be used for that purpose. Under this rule, courts of law will not permit an attorney to give such communications in evidence, and, in a court of equity the maxim is: no man need discover legal advice which has been given to him by his professional advisers, or statements of fact which have passed between himself and them, in reference to the matter in litigation. Mitford's Plea. 195. The principle of the rule does not embrace this case, for the witness is an accomplice, who is allowed to give evidence in favor of the State, with the express understanding that he is to disclose his own guilt; consequently, a rule which was adopted in order to prevent a party from being required to criminate himself, and to avoid the danger of being criminated by a communication made to his attorney, has no application. Upon this point, the defendant is entitled to a venire de novo, and it is unnecessary to refer to other points.
PER CURIAM. Judgment reversed.