
    The People of the State of New York, Respondent, v. George W. Hess, Appellant.
    
      Crimes—the former attorney of a prisoner may disclose confidential communications, •made to him after he has refused to act for the prisoner — credibility of the accused -—the defendant cannot prom threats of the deceased nor his reputation for quarrelsomeness and violence until he has proved that he was acting in self-defense.
    
    Where a person, who has been charged with, a crime, is brought before a magistrate who has acted as his attorney in other matters, and the magistrate, after the hearing, explicitly refuses a request of the accused that he act as his attorney in the pending criminal proceedings, the magistrate may testify, upon the trial of an indictment for the crime, to confidential communications subsequently made to him by the accused.
    The inhibition of the statutes only applies to communications made “ in the course of his professional employment.”
    The question whether a communication is privileged is a matter for the court to determine from the facts appearing.
    
      The court may remind a jury that the credibility of a witness is affected by his relation to the case upon trial, leaving the question of its weight for the consideration of the jury.
    Where, upon the trial of an indictment for murder in the second degree, no evidence has been given from which the jury would have a right to say that the defendant was acting in self-defense, he has no right to prove threats made against him by the deceased, nor that the reputation of the deceased was that of a dangerous man.
    Appeal by the defendant, George W. Hess, from a judgment of the Court of Sessions of Greene county, rendered on the 12th day of December, 1893, upon the verdict of a jury convicting the defendant of the crime of manslaughter in the first degree upon an indictment for murder in the second degree.
    
      Eugene Burlingame and Jacob II. Clute, for the appellant.
    
      Edward A. Gifford, District Attorney, for the respondent.
   Merwin, J.:

The defendant was charged with shooting with a revolver one Ilezekiah Bedell on the 16th day of October, 1892, at the hotel of the defendant in West Coxsackie. Bedell died the same day from the effect of the wound. On the trial the defendant, in substance, admitted that he fired the shot, but he claimed that he did it in self-defense, and that was the main issue at the trial. The defendant claimed that he had reasonable ground to apprehend a design on the part of Bedell to do him great personal injury, and that there was imminent danger of such design being accomplished. (Penal Code, § 205.) The jury by their verdict said that this claim was not established by the evidence.

The defendant had at his hotel a clambake on the evening of Saturday, October 15, 1892. This was closed shortly before midnight, and at about that time Bedell was in the bar room, which was in the basement of the hotel, smoking a cigarette and talking with Brandow and W. H. Hallenbeck, tw'o of defendant’s employees. There soon came in Delanoy and Fancher, who were acquaintances of all the parties, and had been there before on that evening. After a little time, Delanoy, without any provocation, and claiming to be in fun, knocked the cigarette out of the mouth or hand of Bedell. This made Bedell angry, and he thereupon struck or slapped Delanoy on the side of the head. Then followed a struggle' between Bedell and Delanoy, during which the defendant and Franklin, another employee, came down stairs into the bar room. Defendant told them to stop fighting or leave, and Bedell replied he would leave when he got ready. The fighting did not stop. Delanoy was down, or partially down, on the side of the room. Franklin and Hallenbeck were trying to restrain Bedell, who was struggling to get loose from them for the purpose, apparently, of either continuing his fight with Delanoy, or, as the defendant says, trying to reach and strike him. About this time defendant took a revolver which he had in the bar, and, as he says, for the purpose of disabling Bedell and protecting himself from great personal injury, which he believed was imminent, fired at the legs of .Bedell. The ball entered the body of Bedell, in the chest, a little to the left of the median line, and passed downward through the abdomen, and was deposited near the lower end of the spine. Bedell was a young man about twenty years old, strong, and weighing about 190 pounds. He had no weapon, and his fighting was with his hands or fists. Delanoy had a pistol, and it seems to have been thought, at one time, that he did the shooting, but that theory was abandoned.

Upon this appeal the defendant claims that material errors were made by the court in its rulings upon evidence and in its charge, and also that the defendant should have the benefit of that provision of section 527 of the Code of Criminal Procedure, which provides that “ the appellate court may order a new trial if it be satisfied that the verdict against the prisoner Avas against the weight of evidence or against la\v, or that justice requires a new trial, whether any exception shall have been taken or not in the court below.”

Hpon the trial one EdAvin C. Hallenbeck was called by the People as a Avituess. He was an attorney and a justice of the peace. As a magistrate he, on Sunday, conducted a preliminary examination as to the affray, the coroner being absent from toAvn. Depositions were taken, and the defendant, and also Delanoy, were placed under arrest. They both asked for counsel, and the proceeding Avas thereupon adjourned to the folloAving Tuesday, both the parties charged being committed to the custody of the sheriff until that time. On Monday Hallenbeck saw the defendant in the county jail and liad there a conversation with him, which he was allowed to state, improperly as the defendant claims, by reason of the provision of the law (Code Civ. Proc. § 835; Code Crim. Proc. § 392) that an attorney “ shall not be allowed to disclose a communication made by his client to him, or his advice given thereon, in the course of his professional employment.”

It appears that Hallenbeck had been the counsel of defendant in all his legal matters from the time defendant came to Coxsackie, in December, 1891, and at the time of the affray was his attorney in relation to a matter against a railroad. At the time the examination began, on Sunday morning, defendant said to Hallenbeck that he wanted him to be his attorney in the case, and Hallenbeck replied that he was the magistrate in the matter and could not be his attorney in the case. The defendant thereupon sent for other counsel. On Monday Hallenbeck was at Catskill, and, as he understood it, was sent for by defendant to come and see him at the jail. He went, and defendant wanted to talk with him about his case. Hallenbeck told him he could not and would not be his attorney or counsel in the matter. Defendant replied that there was a matter he did not wish to talk to counsel about, but wished to talk with him, Hallenbeck, because he had confidence in him by reason of his acquaintanceship, and because he, Hallenbeck, was a member of the same order that Delanoy was, to whom he wanted to send a communication. Thereupon defendant told Hallenoeck certain things about the shooting which he wisned him to tell Delanoy. Hallenbeck did the errand and reported to defendant the reply of" Delanoy. The ■communication sent to Delanoy and the interview when the reply was reported to defendant, constitute the evidence claimed to have "been improperly admitted. There is no doubt of the materiality of yhe evidence. Clearly, according to the evidence of Hallenbeck, the relation ot attorney and client did not exist between the defend-•a.nt and Hallenbeck as to the affair then under consideration, and the defendant was distinctly so informed. The fact that, as to ■other matters, the relation may have existed, does not confer the •privilege here, especially when the relation here is distinctly repudiated to the party. In 1 Greenleaf on Evidence (§ 244) it io ■¡said that the attorney may be examined where the thing had no reference to the professional employment, though disclosed while the relation of attorney and client subsisted.” The Code only includes a communication “ in the course of his professional employment.” The fact simply that the communication is confidential is not enough. (Renihan v. Dennin, 103 N. Y. 579; Haulenbeck v. McGibbon, 60 Hun, 26; 1 Greenl. on Ev., § 244.) Communications to a friend are not covered by the statute. (People v. Buchanan, 145 N. Y. 1.) In Williams v. Pitch (18 id. 551) it is said the communications must be made to the attorney in the course of the professional employment, and relate to the subject of the employment. Whether the communication is privileged is a matter for the court to determine from the facts appearing. (Bacon v. Frisbie, 80 N. Y. 394.) We are of the opinion that the court did not err in receiving the evidence, or in denying the motion to strike it out, made after the evidence of the defendant on the subject wa¿ given. It was very apparent that the communications of which evidence was received were not made in the course of any professional employment.

The defendant claims error in the remarks of the court in the charge on the subject of the credibility of the defendant. Speaking of the testimony of the defendant himself, the court said: “ But of course the credibility and the effect of the testimony is very much weakened by the fact that Mr. Hess is charged here with a great crime — that his words constitute his defense.” This, at the close of the charge, was excepted to, and the court then said : I will charge the jury that they may look at it as they will, viewing the whole testimony. It is liable to be weakened by it, but the jury must satisfy themselves as to his credibility, the same as any other witness under charges of the kind preferred. against him. I charge that so that there would be po misunderstanding.” The court also, at the request of the counsel for the defendant, in substance, said that the jury are to give the evidence of Mr. Hess such weight as any witness, under the circumstances of this case, would be entitled to. The court, at the commencement of the charge, had used the following language: “The testimony in this case belongs to you. The evidence, what is the truth of the testimony, belong to you to decide. It belongs to you to say what is the truth of the testimony. It belongs to you to say which of the witnesses •are entitled to credit. ■ It belongs to you to say what part of the testimony of the witnesses you will accept, and what part you will reject. You can receive a part of the testimony of the witnesses, and you can reject another part that seems to you incredible. You have ample power in all this direction. You are not obliged to receive the testimony as a whole of any witness. You can receive that part which seems consistent with truth and the probabilities of the case and the surrounding circumstances, and you can reject that part which seems to be unreasonable and not consistent with the facts and circumstances of the case. With all this class of work the court cannot materially aid you. We do not assume to judge on those points at all. The law reserves them exclusively for the jury, and I am thankful for it. If in anything I may proceed beyond my duty iu that respect I want you to distinctly understand at this point that you are not to be controlled nor influenced in any way by whatever I may say upon the' subject of the testimony or the evidence in this case.”

“ The credibility of any witness may be affected by his interest in the result of an issue, or his relation to the case on trial, and a court does not exceed its duty when it reminds a jury of such a circumstance, leaving its weight for their consideration.” (The People v. Crowley, 102 N. Y. 234, 238.) This the court in effect did here. In Hart v. Ryan (25 N. Y. St. Repr. 886, 891) it is said: “ It is competent for a trial judge to comment upon the evidence, and even express an opinion in respect to the same if he confides the question of its force and effect to' the jury.” (Citing Allis v. Leonard, 58 N. Y. 291; People v. O'Neill, 112 id. 355.) If the words excepted to in the present instance were too strong, the error, if any, was cured by what subsequently occurred, within the principle laid down in Greenfield v. People (85 N. Y. 15). The same may be said of any error in the charge as to the necessity of effort on the part of the defendant to escape. At the request of the defendant the court charged that the defendant was not bound to retreat at all.

The defendant claims error in the court ruling out evidence offered by the defendant as to threats made by the deceased against defendant and of the reputation of the deceased as a violent and dangerous man. This evidence was offered on the cross-examination of witnesses for the People. The rule is, that after evidence lias been given by a defendant, tending to show that the homicid e was committed in self-defense, he may follow it by proof of the general reputation of the deceased for quarrelsomeness and violence.” (People v. Druse, 103 N. Y. 655). So as to threats it is said : They are, however, inadmissible, unless proof be first given that there was an overt act of attack, and that the defendant at the time of the collision was in apparent imminent danger.” (Whart. on Crim. Ev. § 757.) When the evidence referred to was offered, the court was of the opinion that, as the case then stood, there was no evidence from which the jury had a right to say that the defendant was acting in self-defense or had been attacked by the deceased. We think the court did not err in sustaining the objection to the evidence at that stage of the case. The defendant had full opportunity afterwards to present the evidence.

We are referred in a general way to numerous other exceptions and to some things that occurred where no exception was taken, as bearing upon the proposition that justice requires that a new trial be granted. We have examined the exceptions and statements to which our attention is called, and have considered the suggestions presented by the learned counsel for the defendant. We fail to discern any error on the part of the court that calls for a reversal, or any good ground for ordering a new trial. The charge as a whole preserved all the rights of the defendant, and called upon the jury to fairly express their judgment upon the evidence.

Upon the facts the case is strongly against the defendant. At the time of the shooting there were five persons present beside the defendant and the deceased. These five were all called as Avitnesses for the People. Three of them were employees of the defendant and their credibility is not attacked. They were friendly to the defendant. The situation according to their evidence very clearly was, that the deceased had then no controversy with the defendant; that his quarrel Avas solely with Delanoy; that he offered no violence to any other but Franklin, and that only for the purpose of avoiding the restraint that Franklin was seeking to impose; that Delanoy was the only one in danger from the violence of the deceased, and the defendant did not claim he did the shooting for the purpose of defending Delanoy. HAving in víoav the evidence of the defendant, and bearing in mind the evidence of the other five who were present, it is difficult to see how the jury could intelligently have found any other verdict than they did upon the issue presented by the evidence of the defendant.

It is our duty to give judgment “ without. regard to technical errors or defects, or to exceptions which do not affect the substantial rights of the parties.” (Code Crim. Proc. § 542; People v. Dimick, 107 N. Y. 13.)

The judgment should be affirmed.

All concurred.

Judgment of conviction affirmed.  