Page images

met defendant before; he was introduced to me by a citizen of our place, and he informed me that he wanted to talk with me with regard to a matter he wanted to bring before the grand jury. (Objected to.) The Court. I will allow the witness to state what the doctor said on that occasion. Of course, if he made the communication to the witness in good faith, there would be no malice about it, and I shall instruct the jury to disregard it. The objection is overruled. To which ruling of the court the defendant at the time excepted. A. As I stated, I had at that time no acquaintance with defendant whatever. He inquired for the state's attorney, and was introduced to me, and he spoke of his affairs. He said he wanted to bring a matter before the grand jury in regard to Mr. Gruaz. I talked with him in regard to the nature of the matter, and he talked pretty freely in regard to it, and I directed him to the grand jury room. He said a good many things. He was evidently in earnest at the time, expressed himself very freely in regard to him. I would not like to swear to the exact words used, or that anybody used at the time. I can give the substance of what he said, I suppose. He wanted to prosecute Gruaz for stealing, was the amount of it. I recollect this: he charged him with having stolen his money, and I asked him how, and he told me how it had been done. Gruaz was his agent and handled his funds, rented his farms, and bad failed to account for a large amount of money, he told me, and he charged him in this conversation with having stolen his money, and he said he wanted to know if there was any law in this state to prosecute a man for that. I have no objection to state any words. I remember his making the charge that he had stolen his money, but I can't swear that the word .thief' was used at that time; that it was in substance, undoubtedly. My impression is that this was the March term, 1878, of the circuit court of Madison count, either that or October term, 1877; my recollection and decided impression is that it was the spring term, 1878. Dr. Bircher went into the grand jury room and gave his statement to the grand jury. He was anxious, of course, to have the indictment found, and he evidently believed or so expressed himself. (Counsel for defendant objected to witness stating his opinion about what defendant evidently believed.) The Court. He said he went before the grand jury, and said he seemed to be in earnest in his movements, but he didn't say what took place before the grand jury. Don't know, I suppose.

Witness. No, I don't know. Cross-examination. Maj. Prickett introduced Bircher to me; never saw him before in my life. I was certain he came to see me as prosecuting attorney, in good faith. That was his business, as he stated it to me. After he made his statement to me I advised him to go before the grand jury; directed him to their room. He went there by my advice. Hold on–I don't*ray that; I ad vised him that he had a good case. He came to me and I showed him where the grand jury room was. He stated his case to me as state's attorney. I then directed him where to go, and said I should prosecute it as vigorously as possible, if the indictment was found. In regard to the advice I gave him, I rather encouraged him to drop the thing; I told him he better sue Mr. Gruaz first, and see if he couldn't get judgment against him, and so put it in a better shape to prosecute him. He stated his case, and I thought from his statement that he would have few, if any, witnesses besides himself, ard that it would be doubtful, however honestly he might believe, that he had cause; it would be doubtful whether the jury would bring a bill; so I advised him to bring a civil suit; but, said I, you are here, and you mustn't think hardly of me if the grand jury don't find a bill; and I directed him to the grand jury room.”

The bill of exceptions also contains the following: “In reference to the testimony of state's attorney C. L. Cook, the court instructed the jury as folfows: I admitted that evidence with an explanation, and with the explanation made in the admission of it I think I am content, and I think the jury may take it into consideration; but if they think the defendant was actuated by honest motives in making the declaration he did, they will disregard it.' To the giving of which last instruction the defendant excepted, for the reason that the instruction ignores the element of want of probable cause, and for the reason also that the jury should bave been instructed to disregard Cook's testimony entirely."

We are of opinion that what was said by Bircher to Mr. Cook was an absolutely privileged communication. It was said to Mr. Cook while he was state's attorney or prosecutor of crimes for the county, and while he was acting in that capacity. Bircher inquired for the state's attorney and was introduced to him, and stated to him that he wanted to talk with him about a matter he wanted to bring before the grand jury in regard to Gruaz. He laid the matter before Mr. Cook, and charged Gruaz with having stolen his money, and was asked how, and stated how and inquired of Mr. Cook if there was any law in Illinois by which a man could be prosecuted for that. The grand jury was then in session, and Mr. Cook advised Bircher that he had a good case and directed him to the grand jury-room, and Bircher went before the grand jury. If all this had taken place between Bircher and an attorney consulted by him who did not hold the public position which Mr. Cook did, clearly, the communication would have been privileged and not to ba disclosed against the objection of Bircher. Under the circumstances shown, Mr. Cook was the professional adviser of Bircher, consulted by him un a statement of his case, to learn his opinion as to whether there was ground in fact and in law for making an attempt to procure an indictment against Gruaz. The fact that Mr. Cook held the position of public prosecutor, and was not to be paid by Bircher for information or advice, did not destroy the relation which the law established between them. It made that relation more sacred on the ground of public policy. The avenue to the grand jury should always be free and unobstructed. Bircher might have gone directly before it without consulting with Mr. Cook, but if he chose to consult him instead of a private counsel, there was great propriety in his doing so. Any person who desires to pursue the same course should not be deterred by the fear of having what he may say in the confidence of a consultation with a professional adviser, supposed to be the best qualified for the purpose, disclosed afterwards in a civil suit against his objection. Oliver v. Pate, 43 Ind. 132. By the statute of Illinois in force at the time of this occurrence, it was made the duty of each state's attorney to “commence and prosecute" all criminal actions, suits, indictments, and prosecutions in any court of record in his county, in which the people of the state or county might be concerned. (Rev. St. 1874, c. 14, § 5, subd. 1.) Under this provision it was the province and the privilege of any person who knew of facts tending to show the commission of a crime, to lay those facts before the public officer whose duty it was to commence a prosecution for the crime. Public policy will protect all such communications absolutely, and without reference to the motive or intent of the informer or the question of probable cause; the ground being that greater mischief will probably result from requiring or permitting them to be disclosed than from wholly rejecting them. Mr. Cook learned from Bircher the things to which he testified, because he occupied the position of public prosecuting officer, and because he was acting at the time as the legal adviser of Bircher in respect to the matter and question which Bircher was laying before him. The free and unembarrassed administration of justice in respect to the criminal law in which the public is con. cerned, is involved in a case like the present, in addition to the considerations which ordinarily apply in communications from client to counsel in matters of purely private concern. Bircher made his communication to Mr. Cook for the purpose of obtaining professional advice as to his right, and


that of the public through him, to have a criminal prosecution commenced by Mr. Cook by the intervention of the grand jury against Gruaz.

But there is another view of the subject. The matter concerned the administration of penal justice, and the principle of public safety justifies and demands the rule of exclusion. In Worthington v. Scribner, 109 Mass. 487, an action for maliciously and falsely representing to the treasury department of the United States that the plaintiff was intending to defraud the

revenue, it was held that the defendant could not be compelled to answer whether he did not give to the department information of supposed or alleged frauds on the revenue contemplated by the plaintiff. The principle laid down in that case was, that it is the duty of every citizen to communicate to his government any information which he has of the commission of an offense against its laws; and that a court of justice will not compel or allow such information to be disclosed, either by the subordinate officer to whom it is given, by the informer himself, or by any other person, without the permission of the government, the evidence being excluded not for the protection of the witness or of the party in the particular case, but upon general grounds of public policy, because of the confidential nature of such communications. The authorities are collected and reviewed in that case. The case of Dawkins v. Rokeby, L. R. 8 Q. B. 255, there cited, was affirmed by the house of lords, L.* R. 7 H. L. 744. See, also, 1 Greenl. Ev. § 250; Black v. Holmes, 1 Fox & Sm. 28.

It makes no difference that there was evidence of the speaking of the same words to persons other than Mr. Cook, and that the speaking of them to Mr. Cook was not the sole ground of action or of recovery. The evidence was incompetent, and it must be inferred that it affected the minds of the jury both on the main issue and on the question of damages.

It results from these views that the judgment below cannot be upheld, and that it must be reversed, and the case be remanded to the circuit court, with direction to set aside the verdict and vacate the judgment and take such further proceedings as may be according to law and not inconsistent with this opinion.



Appeal from the Supreme Court of the District of Columbia.

MILLER, J., dissenting. In these cases the Chief Justice, Mr. Justice GRAY, and myself, do not agree with the judgment of the court. We concur in nearly all that is said in the opinion, and in the general-proposition that where* a town lot or other land is bounded on a street or road, or other highway, the fee to which is in some other person than the lot-owner, his rights as a landowner do not extend beyond the street, and in case the street occupies the bank of a river or other water way, no riparian rights attach to the lot or its owner. But we think the court has erred in the application of this doctrine to the present case by failing to give due weight to one or two considerations which we shall mention.

1. Notley Young was the original and sole owner in fee-simple of that part of the land on which Washington city was laid out, which includes the locus in quo, and there is no question that this ownership included the right to erect wharves on it on the Potomac river, where the wharf now in contest

" See majority opinion, 3 SUP. Cr. REP. 445.


is constructed. In pursuance of the scheme by which a city with streets, lots, and squares was laid out in this land, he conveyed it in trust to Beall and Gantt. They were to lay it out into streets, squares, and lots. When this was done, the title in fee of the streets, as well as of such squares as were to be reserved for public uses, was to vest in the United States. Of all this property, after that was done, there was to be a fair and equal division between Young and the government, and Young's part was to be conveyed to him, and the other half to commissioners to be named by the president. The riparian rights of land owners on the Potomac river were understood at that time as well or perhaps better than they are now, and the value attached then, and especially to the right to construct wharves, is shown clearly by the record, and by the act of the legislature of Maryland of December 19, 1791, cited in the beginning of the court's opinion. It therefore could not have escaped attention if the entire water way of the river, and the right of approach to it, and use of it in regard to wharves and landingplaces, was vested exclusively in the United States, that no equal division was made of this important right, unless it was by the right attached to each lot which, but for Water street would be bounded by the river. No equivalent is given to Young for this valuable right, on the supposition that it all vested in the United States; no epxress words are used conveying it to the United States or dedicating it to the public. It cannot be successfully maintained that the right attaches as appurtenant to the street. The uses of a street, and of a wharf are entirely different, and while a dedication of a street to public use may not be inconsistent with the use of a part of it for a landing-place, it cannot be said to have as appurtenant to it a right to build a wharf into the river. If such a street had a definite width, it must happen that there would, by reason of the irregular curvature of the river, ba detached pieces of land between it and the water. To whom did this land belong, unless to the lot which would embrace it if its lines were extended to the water? And if the lot did not embrace it, what equal division of this valuable land has ever been made with Mr. Young? As it was the duty of the trustees to divide the whole land, it will be presumed that they did it, and that this was their mode of doing it.

The cases of Doane v. Broad Street Ass'n, 6 Mass. 332, and Hathaway v. Wilson, 123 Mass. 359, are directly in point. In the former case, a partition was made, under which the parties claimed, and it was insisted that certain flats, which were the subject of the contest, did not pass as appurtenant to a wharf allotted to one of the parties, because both the wharf and the flats were land, and land cannot pass as appurtenant to land. But the court said that though the flats were not specifically mentioned, yet the duty of the commissioners to partition them, and their relation to the wharf, which could not be used without passing over them, led to the fair inference that on the partition they were intended to pass as part of the wharf property

2. This view is confirmed by the language of the commissioners, who made the division with Young, in the certificate which they gave him This was not in form, a regular deed of conveyance, but is clearly intended to define the square or lots which fell to him in the division, and to remit him for his ownership to his original title, and for the nature of that ownership to the surrounding circumstances. Take square No. 472, one of those now in controversy, the certificate says that “the whole of said square shall remain to the said Notley Young, agreeably to the deed of trust concerning lands in the said city.” Here is a plain remission to his original title and right, which, but for Water street, must include riparian rights also. And though this certificate is accompanied by a plat which shows Water street as lying between the square and the river, we are not able to see that this cir cumstance excludes the original riparian rights of Young, in the absence of any evidence that those rights were allotted to the government in the pan.

[ocr errors]

tition, or that Young anywhere received an equivalent for those rights unless he obtained it by this statement, that the “square shall remain to Young agreeably to the deed of trust made by him.” No such deed was executed by the commissioners to purchasers of lots from the United States.

This view of the matter was taken by Judge CRANCH in the case of Chesapeake & Ohio Canal Co. v. Union Bank of Georgetown, 5 Cranch, C. C. 509, decided in 1838, and though the case is not fully argued by the court, the eminent ability of the judge who decided it, and his well-known accuracy as a reporter, and his knowledge of the local laws and customs of the city of Washington, entitle it to very great weight, as what he intended to decide is quite clear.

The careful and elaborate letter of the commissioners to the president, of July 24, 1795, which states that “no wharves, except by the public, can be erected on the waters opposite the public appropriations, or on the streets at right angles with the waters;” but “with respect to the private property on the water” lays down regulations by which“proprietors of property lying on the water" are to be permitted to build wharves, and to erect warehouses thereon, leaving spaces at certain distances for cross streets, evidently uses the words “public appropriations” as distinct from “streets,” and as designating the lots and squares set apart, with the president's approval, for the public use; and, by prohibiting the erection of private wharves at the end of "the streets at right angles with the water,” and omitting to mention the shores by the side of other streets, clearly implies that such shores are not covered by the prohibition, but are to be treated as included in “the private a property on the water." * The lot set off to the United States, and afterwards sold to Morris and Greenleaf, is within the same principle.

The declaration in the preliminary contract of 1793, between the commissioners and them, that the latter were entitled “of course to the privileges of wharfing annexed” to these lots, while not evidence of a contract to control the terms of the subsequent more formal instrument, is of weight as showing what at that time was understood to be included in a description of the lots. When to this we add that no act of Congress has ever asserted ownership of these wharves or landing places, or the rights of a riparian owner, while they lavo conferred on the authorities of the district the power of regulating wharves, private and public, we are forced to the conclusion that . these rights are left with the owner of the squares certified to Notley Young in the division with the United States.

[blocks in formation]

(January 21, 1884.) APPEAL TO SUPREME COURT SUPERSEDEAS—Rev. St. 1007.

Where a court in session, and acting judicially, allows an appeal which is en. tered of record without taking a bond within 60 days after rendering a decree, & justice or judge of the appellate court may, in his discretion, grant a supersedeas after the expiration of that time, under the provisions of section 1007 of the Revised Statutes.

Notice to Vacate Supersedeas and to Dismiss Appeal. T. T. Crittenden and M. T. Morris, for appellant. A. G. Riddle, for appellee. WAITE, C. J. This is an appeal from a decree of the supreme court of the District of Columbia, rendered on the thirtieth of October, 1882. At the foot

« PreviousContinue »