
    Duttenhofer v. The State.
    Where the accused in a criminal trial becomes a witness in his own behalf, he can not be compelled, on cross-examination, to disclose the confidential communications between himself and his attorney; nor can such disclosures be required of the attorney without the consent of the accused. It is the privilege of the accused to have such communications-protected from compulsory disclosure, and the privilege is not waived by his becoming a witness.
    Error to the Court of Common Pleas of Meigs county.
    The plaintiff in error was indicted for forgery. The alleged forgery consisted in the addition of the words “ with interest at eight per cent.” to certain promissory notes, which had been given to plaintiff in error.
    On the trial the plaintiff in error was examined as a witness on his own behalf, but, in his examination in chief,, gave no evidence touching communications passing between him and his attorney. On cross-examination by the state, he was required, against his objection, to disclose communications, both written and oral, which he had made to his attorney concerning the matter in controversy. His attorney, S. Dana Horton, was called as a witness on the part of the state, and was required, against his objection and that of his' client, the accused, to produce certain letters he had received from the accused concerning the matter in ■dispute. These letter’s were received by Mr. Plorton in his relation as attorney of the accused. The letters were put in evidence by the state.- The attorney was also required to give in evidence certain oral communications made to him by his client, touching the matters at issue.
    The trial resulted in the conviction of the accused; and ■sentence was pronounced on the verdict.
    One of the errors assigned is, that the court erred in requiring the accused and his attorney to give in evidence the communications made by the former to the latter, con■cerning the matters in controversy.
    
      Grosvenor § Vorhes, with whom was John Cartwright and JS. D. Horton, for plaintiff' in error.
    By the common law, all communications made by a party to his attorney, and all written admissions of his, confided to an attorney, are privileged, and the party can not be ■compelled to admit them, nor an attorney to disclose them. This rule of the law is very ancient, very sacred, and universally admitted and approved. The enlightened judgment of the bench and bar never complained of it, always enforced it, and jealously guarded it. Wharton on Evidence, 576, and cases there cited ; Ibid, 479 ; Montgomery v. Pickering, 116 Mass. 229 ; Barker v. Kuhn, 38 Iowa, 395.
    The code of civil procedure, section 314, disqualifies Hor.ton, the attorney, but the 315th section provides that, “ if a person offers himself as a witness, that is to be deemed a •consent to the examination also of an attorney, clergyman, or priest, on the same subject, within the meaning of the last two subdivisions of the preceding section.”
    
    
      The legislature, in enacting section 313 of the code, made parties competent, but considered that that fact, and the additional fact that parties might avail themselves of the right, and go upon the stand and testify, did not alone operate to make it legal to examine the attorney of such party, and hence, section 315, above cited.
    This view of the matter is very fully sustained by the Supreme Court of Indiana, in divers cases. Bigler v. Reyher, 33 Ind. 112 ; Bowers v. Briggs, 20 Ind. 139; Borum, v. Fouts, 15 Ind. 50; Jenkinson v. The State, 5 Blackf. 465; Maas v. Block, 7 Ind. 202.
    The mere offering of one’s self as a witness in a, civil action did not make his attorney a competent witness to dispute him, or to give evidence of professional secrets; it took a statute to make it operate as a waiver. Hence, if no such statute can be found applying to criminal evidence and criminal actions, the privilege remains.
    There is no section or enactment in this criminal code corresponding in words, or tenor and effect, to section 315 of the code of civil procedure. It was deemed necessary to place such an enactment in the civil code, else the act of testifying would not have been deemed a waiver. It was not deemed proper to put such an enactment in the criminal code, for the reason that it was not intended that the act of testifying should so operate as a waiver of the priv-, ilege of the attorney.
    Then we have this result:
    1. The right to compel an attorney to testify to communications made to him by his client, as such, in a civil case, is held by the supreme court to come of section 315, and it is fair to argue that without that section, no waiver would have been held to have been made.
    2. This section does not apply to, or operate upon, criminal actions, and evidence in criminal cases.
    3. There being no such statute in the criminal code, the defendant goes upon the stand, waiving nothing he had by law before.
    
      The claim we make is:
    When a party defendant in a criminal action avails himself of a privilege given by statute to testify, and goes ■upon the stand and gives evidence, even to a single fact, he thereby opens the door to being compelled to answer cross-interrogatories touching all matters pertinent to the issue being tried. Beyond this no court has ever gone. Beyond this no court ought to go.
    It follows that the state, in order to make out its reply in chief, had no right to call Duttenhofer, and force him to testify to original and substantial evidence in chief against ■himself,
    
      Isaiah Pillars, attorney-general; Ira Graham, prosecutiug attorney; Russell &; Russell, and Johns S. Giles, for defendant in error.
   White, C. J.

The only question we find it necessary to •consider in this case is, whether the court erred in requiring the accused and his attorney to disclose the communications made by the former to the latter in the relation of ■client and attorney.

It is laid down as a general rule of jurisprudence, that “ where an attorney is employed by a client professionally, to transact professional business, all the communications that pass between the client and the attorney in the course .and for the purpose of that business are privileged communications, and that the privilege is the privilege of the ■client and not of the attorney.” Herring v. Clobery, 1 Phill. 91 ; Pearse v. Pearse, 1 DeGex & Smale, 25.

The privilege applies to the communication; and it is immaterial whether the client is or is not a party to the .action in which the question arises, or whether the disclosure is sought from the client or his legal adviser. Wharton’s Ev. § 588; Stephens Ev. art. 115.

By section 814 of the code of civil procedure, an attorney is declared incompetent to testify concerning any ■communication made to him by his client, in that relation, or his advice thereon, without his client’s consent.

Section 315, however, provides, that, if a person offer himself as a witness, that is to be deemed a consent to the examination also of the attorney, on the same subject.

The code of criminal procedure contains no such provision ; and the question is, whether the accused, by offering himself as a witness in his own behalf in a criminal prosecution, waives the protection which would otherwise be extended to the privileged communications passing between him and his attorney.

We think no such waiver ought to be implied. In several of the states, in the absence of a statutory provision corresponding to section 315 of our code of civil procedure, it has been ruled that a party, by becoming a witness on his own behalf, does not waive the privilege.

In Bigler v. Reyker, it was held by the Supreme Court of Indiana, that a party, having given evidence in chief in his own behalf, can not, on cross-examination, be compelled to divulge statements made by him when consulting, as a client, an attorney at law; and that such communications are privileged and protected from inquiry, when the client is a witness, as well as when the attorney is a witness. 43 Ind. 112. To the same effect is the decision in Barker v. Kuhn, 38 Iowa, 395 ; Hemenway v. Smith, 28 Vt. 701; and Bobo v. Bryson, 21 Ark. 387.

The contrary was held in Massachusetts, iu the case of Inhabitants of Woburn v. Henshaw, 101 Mass. 200. It was there said : “ The objection that the defendant was wrongfully compelled to undergo a cross-examination as to what he said to his counsel, can not be sustained. The policy of the law will not allow the counsel himself to make disclosures of confidential communications ’from his client; but if the -client sees fit to be a witness, he makes himself liable to full cross-examination like any other witness.”

But we apprehend that other witnesses than the party ■could not, on cross-examination, be compelled to disclose confidential communications made to their legal adviser, either for the purpose of impeachment or otherwise. Nor do we see the propriety of not allowing the attorney to make the disclosures without thé consent of his client, and yet compelling the client himself to make them.

In our opinion, the weight of authority, and the better reason are against the ruling of the court below.

Judgment reversed and cause remanded for a new trial.  