ness before a committee of the state senate, and there gave testimony of his complicity in the crime; and that testimony was offered in evidence by the prosecution. The testimony had been given under the compulsion of a subpoena, and was admitted at the trial, against the objection that the disclosures before the senate committee were privileged. The court of appeals held that § 79 of the penal code made the constitutional privilege inapplicable, because it indemnified or protected the party against the consequences of his previous testimony. The court cited with approval the case of People v. Kelly, 24 N. Y. 74.

In Bedgood v. State, 115 Ind. 275, in 1888, the supreme court of Indiana had under consideration the provision of art. 1, § 14 of the bill of rights of the constitution of Indiana of 1851, which provides that "no person in any criminal prosecution shall be compelled to testify against himself," and the provisions of 1800 of the revised statutes of Indiana of 1881, to the effect that testimony given by a witness should not be used in any prosecution against him. On a trial before a petit jury in a criminal case against others, a woman had refused to answer a question, on the ground that the answer might criminate her. The supreme court held that, as the statute prohibited her testimony from being used against her, it completely protected her, and the judgment was reversed because the trial court had erroneously refused to require her to answer the question.

This review of the cases shows that in the constitution of Georgia, California, and New York, the provision is identically or substantially that of the Constitution of the United States, namely, that no person shall "be compelled in any criminal case to be a witness against himself;" while in the constitution of Pennsylvania, Arkansas, Indiana, Massachusetts, Virginia, New Hampshire, and North Carolina it is different in language, and to the effect that "no man can be compelled to give evidence against himself;" or that, in prosecutions, the accused "shall not be compelled to give evidence against himself;" or that "no person in any criminal prosecution shall be compelled to testify against himself," or that no person shall be "compelled to accuse or furnish evidence against himself;" or that no man can "be compelled to give evidence against himself;" or that, in all criminal prosecutions, "every man has the right to not be compelled to give evidence against himself."

Under the constitutions of Arkansas, Georgia, California, Indi ana, New York, New Hampshire, and North Carolina it was held that a given statutory provision made it lawful to compel a wit ness to testify; while in Massachusetts and Virginia it was held that the statutory provisions were inadequate in view of the constitutional provision. In New Hampshire, and in New York under the penal code, it was held that the statutory provisions were sufficient to supply the place of the constitutional provision, because, by statute, the witness was entirely relieved from prosecution.

But, as the manifest purpose of the constitutional provisions, both of the states and of the United States, is to prohibit the compelling of testimony of a self-criminating kind from a party or a witness, the liberal construction which must be placed upon constitutional provisions for the protection of personal rights would seem to require that the constitutional guaranties, however differently worded, should have as far as possible the same interpretation; and that where the constitution, as in the cases of Massachusetts and New Hampshire, declares that the subject shall not be "compelled to accuse or furnish evidence against himself;" such a provision should not have a different interpretation from that which belongs to constitutions like those of the United States and of New York, which declare that no person shall be "compelled in any criminal case to be a witness against himself."

§ 208. The Privilege of Attorneys.-The rule of privileged communications as applied to the relation of attorney and client in civil matters, is substantially the same as in the administration of criminal justice. Whether the protection can be removed without the client's consent in cases in which the interest of criminal justice requires the production of the evidence may admit of some doubt. Hageman, Privileged Communications, § 252, citing Taylor, Ev. § 929; Reg. v. Tylney, 18 L. J. M. C. 37; Reg. v. Tufts, 1 Den. C. C. 319.

A paragraph from Judge Cooley is pertinent in this connection:

"In guaranteeing to parties accused of crime the right to the aid of counsel, the Constitution secures it with all its accustomed incidents. Among these is that shield of protection which is thrown around the confidence the relation of counsel and client requires, and which does not permit the disclosure by the former, even in

the courts of justice, of communications which may have been made to him by the latter, with a view to pending or anticipated litigation. This is the client's privilege; the counsel cannot waive it; and the court would not permit the disclosure even if the client were not present to take the objection." Cooley, Const. Lim. (6th ed.) 407.

In the case of Tichborne v. Lushington, Shorthand Notes, p. 5211, out of which the prosecution of Orton for perjury arose, Bovill, Ch. J., at the close of the case said: "I believe the law is, and properly is, that if a party consults an attorney, and obtains advice for what afterwards turns out to be the commission of a crime or a fraud, that party so consulting the attorney has no privilege whatever to close the lips of the attorney from stating the truth. Indeed, if any such privilege should be contended for or existed, it would work most grievous hardships on an attorney, who, after he had been consulted on what subsequently appeared to be a manifest crime and fraud, would have his lips closed, and might place him in a very serious position of being suspected to be a party to the fraud, and without his having an opportunity of exculpating himself. There is no privilege in the case which I have suggested, of a party consulting another, a professional man, as to what may afterwards turn out to be a crime or fraud, and the best mode of accomplishing it." Reg. v. Cox, L. R. 14 Q. B. Div. 153.

In order that the rule may apply there must be both professional confidence and professional employment; but if the client has a criminal object in view in his communications with his solicitor, one of these elements must necessarily be absent. The client must either conspire with his solicitor or deceive him. If his criminal object is avowed, the client does not consult his advisor professionally, because it cannot be the solicitor's business to further any criminal object. If the client does not avow his object, he reposes no confidence, for the state of facts which is the foundation of the supposed confidence does not exist. The solicitor's advice is obtained by a fraud. Reg v. Cox, supra.

The only thing which we feel authorized to say upon this matter is, that in each particular case the court must determine upon. the facts actually given in evidence or proposed to be given in evidence whether it seems probable that the accused person may have consulted his legal advisor, not after the commission of the

crime for the legitimate purpose of being defended, but before the commission of the crime for the purpose of being guided or helped in committing it. We are far from saying that the question, whether the advice was taken before or after the offense, will always be decisive as to the admissibility of such evidence. Courts must in every instance judge for themselves on the special facts of each particular case, just as they must judge whether a witness deserves to be examined on the supposition that he is hostile, or whether a dying declaration was made in the immediate prospect of death. Reg. v. Cox, supra.

Judge Cooley says that "it has been intimated in New York that the statute making parties witnesses has done away with the rule which protects professional communications. Mitchell's Case, 12 Abb. Pr. 249; note to 1 Phil. Ev. by Cowen, Hill & Edwards, 159. Supposing this to be so in civil cases, the protection would still be the same in the case of persons charged with crime, for such persons cannot be compelled to give evidence against themselves, so that the reason for protecting professional confidence is the same as formerly." Cooley's Const. Lim. (6th

ed.) 408.

The competency of attorneys and counsel to testify as to communications made to them, and matters that they have learned in the course of their professional employment, has been extensively discussed by the courts of the state, and the cases involving that question thoroughly examined. Whiting v. Barney, 30 N. Y. 330; Coveney v. Tannahill, 1 Hill, 33; Bank of Utica v. Mersereau, 3 Barb. Ch. 533. The rule deducible from the authorities is, that all communications made by a client to his counsel, for the purposes of professional advice or assistance, are privileged, whether such advice relates to a suit pending, one contemplated, or to any other matter proper for such advice or aid; that, where the communications are made in the presence of all the parties to the controversy, they are not privileged, but the evidence is competent between such parties. Maxham v. Place, 46 Vt. 434; Graham v. People, 63 Barb. 468; Bowers v. State, 29 Ohio St. 542; Jenkinson v. State, 5 Black f. 465; March v. Ludlum, 3 Sandf. Ch. 45; Whiting v. Barney, supra; Crosby v. Berger, 11 Paige, 377; Orton v. McCord, 33 Wis. 205; Chahoon v. Com. 21 Gratt. 822; State v. Hazleton, 15 La. Ann. 72.

The immunities that surround the communications between

lawyer and client, are all dissolved should it appear that the communication was in furtherance of an illegal object.

When an attorney prostitutes the privileges of his high calling to base and dishonest ends with the connivance and assistance of his clients the law very properly withdraws its fostering care and protection from the disclosures they may make and they both stand before the court as criminals, deprived of any right to evoke the protection that is always the privilege of honest men.

§ 209. The Privilege of Physicians.-The statutory law of New York from a very early period has extended the same protection that may be invoked between attorney and client to the relations that subsist between physician and patient.

At common law, the information obtained by physicians in their professional intercourse with patients was not privileged from disclosure. The "information," of which the statute forbids the disclosure, is not confined to communications made by the patient, but extends to all facts which necessarily come to the knowledge of the physician in a professional case. The statute is for the protection of the patient and not the physician, and being of a remedial nature, it should be construed liberally and with reference to the evil it was designed to remedy. To bring a case within the protection of the statute it is not necessary that the technical relation of physician and patient should exist; but the statute is applicable where a physician has attended upon a person under circumstances calculated to induce the opinion that his visit was of a professional nature, and the visit was so regarded and acted upon by the person so attended. People v. Stout, 3 Park. Crim. Rep. 670.

The statutory provision above referred to ultimately crystalized in § 834 of the New York code of civil procedure which is framed in the following language: "A person, duly authorized to practice physic or surgery, shall not be allowed to disclose any information which he acquired in attending a patient, in a professional capacity, and which was necessary to enable him to act in that capacity."

Under this provision it was held that the burden of proof is upon the defendant to show, and that in the first instance, that the technical relation of physician and patient existed between these parties. Cary v. White, 59 N. Y. 339; Steele v. Ward, 30 Hun, 560; Edington v. Etna L. Ins. Co. 77 N. Y. 564.

When a party seeks to exclude evidence under this section the