THE PEOPLE OF THE STATE OF CALIFORNIA, Respondent, v. WILLIAM ATKINSON, Appellant, 40 Cal. 284

Ceookett, J., delivered tbe opinion of tbe Court, Khodes, C. J., Temple J., and Wallace, J., concurring: Tbe defendant was convicted of grand larceny, and bas appealed to tbis Court. On tbe trial one Cannon was called as a witness for tbe prosecution, and was inquired of as to certain statements made by tbe defendant, when on examination before tbe committing magistrate, charged with tbis offence.

Tbe witness stated that be was an attorney at law, and was acting as tbe counsel for tbe defendant on tbe examination before tbe committing magistrate, and “ that what be knew of tbe matter was communicated to bim before be was sworn and as bis counsel.” Thereupon the defendant objected to tbe testimony, but tbe Court overruled tbe objection and compelled tbe witness to testify: After detailing tbe substance of tbe statement made by tbe defendant, tbe witness, on cross-examination, said be did not know whether tbe admissions of tbe defendant, to which be bad testified, “ was what be told me confidentially beforehand or what be swore to.

I cannot recollect bow it was.” When it appeared that tbe witness was unable to state whether tbe admissions to which be bad testified were made to bim as counsel of tbe defendant, or whilst tbe accused was under examination as a witness in bis own behalf, tbe Court should have excluded tbe testimony of its own motion. On principles of public policy, communications from a client to bis attorney, touching tbe subject matter under investigation are privileged, and will not be allowed to be disclosed by tbe attorney, even though be be willing to do so.

But in tbis case, both tbe attorney and tbe defendant objected to tbe testimony on tbis ground, before tbe evidence was admitted; and there was no need to renew tbe objection afterward. Tbe witness, it is true, was unable to state distinctly whether tbe admissions were made to bim as counsel, or by tbe defendant, whilst under examination as a witness. But whatever may be tbe rule in such cases in civil actions, testimony of tbis character ought not to be admitted in a criminal prosecution.

In matters which concern the life or liberty of the citizen, privileged communications made to his counsel should not be allowed to be disclosed, on the grounds that, owing to the defective memory of the witness, he cannot positively state whether they were privileged or not. In such cases the accused should have the benefit of the doubt, and the testimony should be excluded.

If the rule were otherwise, it would always be in the power of a willing witness to reveal the confidential communications made to him by his client, on the plea that he cannot positively remember whether the admissions to which he testifies were made to him as counsel or otherwise. The rule which excludes privileged communications would be of but little value if it could be so easily evaded. I deem it unnecessary to notice the other points made by the appellant. Judgment reversed, and cause remanded for a new trial. Sprague, -J., expressed no opinion.