
    Benedict v. The State.
    
      Oriminal law — Failure of jury to agree — Discharge—Omission to show reason of discharge in journal entry — Correction at subsequent term by order nunc pro tunc — Attorney—Privileged communications.
    
    1. After the submission of a criminal case to a jury, their retirement to their room for deliberation, and their failure to agree upon a verdict, they were discharged by the court. The following entry was thereupon made by the court upon the trial docket: Jury impaneled and sworn. Trial had. Jury discharged for the reason that there was no probability of jurors agreeing. Recognizance fixed at $1,000. Continued.” At the second term of the court thereafter the defendant was again put upon his trial to a jury upon the same indictment. He moved the court to discharge him from further prosecution, offering in evidence in support of his motion the journal entry of the proceedings at the former trial, from which had been omitted the recital from the court docket of the reason of the discharge of the jury. Thereupon the state moved the court to supply such omission by an order nunc pro tunc, which was done, the motion to discharge the defendant overruled, and the trial allowed to proceed. Held, there was no error in such action of the court.
    2. The statements of one accused of crime made to one whose regular employment is, and for many years has been, practicing law before justices of the peace, an'd whose aid and counsel is sought as such attorney or counselor, such statements being made in answer to the inquiries of such adviser as to what the facts concerning the alleged offense were, are privileged communications, and it is error to allow such adviser to testify, upon the trial of the accused, to the statements so made, although the witness had not been admitted to practice in the courts of record of the state.
    Error to the Court of Common Pleas of Meigs county.
    At the January term of the court of common pleas of Meigs county, 1886, the plaintiff in error, Arthur E. Benedict, was put upon his trial to a jury upon an indictment charging him with procuring an abortion upon one Maggie Rathburn. After the submission of the case to the jury, and after they had been for some time in their room, they came into court and reported that they could not agree upon a verdict. The court being satisfied that there was no probability of an agreement, discharged the jury, and made an entry upon the court docket in the following words : “ Jury impaneled and sworn. Trial 
      bad. Jury discharged for the reason that there was no probability of jurors agreeing. Recognizance fixed at $1,000. Recognizance with sureties entered into. Continued.”
    The clerk of the court, in making up the journal, by inadvertence omitted to journalize the statement from the court docket that there was no probability of the jurors agreeing. No exception to the action of the court in discharging the jury was made or taken by the prisoner.
    At the September term of the court, 1886, being the second term after the discharge of the jury, the prisoner was again put upon his trial, upon the same indictment, when, after the jury was sworn, the prisoner moved the court in writing to discharge him from further prosecution in the case for the alleged reason that, at the January term of the court, 1886, a jury was duly impaneled and sworn in the case, and, after hearing the testimony, arguments of counsel, and charge of the court, retired to their room to consider of their verdict, and afterward returned into court without delivering any verdict, and that thereupon the court, without consent of the defendant, discharged the jury from further consideration of the case, without stating upon the journal of the court any reason for so doing. The only evidence offered to sustain this motion was the journal entry of the order above mentioned discharging the jury, from which was omitted the statement that there was no probability of the jurors agreeing. Thereupon the state moved the court for a nunc pro tunc order to be entered as of the January term, 1886, reciting that the jury was discharged at that term for the reason that there was no probability of the jurors agreeing. The only evidence offered in support of this motion was the entry made by the presiding judge on the court docket at the January term, 1886, which is given above. The motion to enter the nunc pro tunc order was sustained, to which the prisoner excepted. Thereupon the coui’t overruled the motion to discharge the prisoner, to which, also, he excepted.
    Upon the trial, the state gave evidence tending to prove that.the prisoner committed the offense charged against him on the 12th of June, 1884; and there was no evidence tending to prove any attempt to commit it on any other day. The prisoner offered himself as a witness in his own behalf to testify, among other things, that several days after the 12th of June, 1884, Maggie Rathburn told him that nothing came of the attempted abortion, and that she was still pregnant; and requested him to continue his attempts at abortion. The objection of the state to the testimony so offered was sustained by the court, to which the prisoner excepted.
    Thereupon the prisoner offered as a witness one Clara Benedict, by whom he offered to prove that Maggie Rathburn had said to her on the 2d of July, 1884, that she, Maggie, was still pregnant, and that she stood up and pointed to her person, saying: “ Put your hand on me there and you will discover that I am still in the family-way.” The objection of the state to this testimony was sustained by the court, to which the prisoner excepted. Thereupon the prisoner offered in evidence two letters of Maggie Rathburn, one addressed to the prisoner and one tó Clara Benedict, both written after the 12th of June, 1884, and also separate paragraphs of each, as distinct propositions, but what párticular paragraphs were so offered is not disclosed by the bill of exceptions. Much of the matter contained in each letter is clearly irrelevant to the issue. The objection of the state to their admission in evidence was sustained by the court, to which the prisoner excepted.
    Upon the trial the state offered as a witness one James Petty, who was asked if at any'time in 1884, after the 12th of June, he had any conversation with the prisoner concerning his relations with Maggie Rathburn. He answered that he had. Thereupon, by leave of the'court, the counsel for the prisoner asked the witness if he was not an attorney at law and if the conversation was not one between him and the prisoner in his relation to the latter as such attorney. The answer of the witness was that he followed the business of practicing law before justices of the peace, and had done so for many years, but that he had not been admitted to the bar. He also said that the prisoner sought his aid and advice in his capacity as such counselor or attorney. The prisoner’s objection to the testimony of the witness concerning any admissions made by the prisoner to him was overruled by the court, to which exceptions were duly taken. The witness then testified that in a conversation which he had with the prisoner after the 12th of June, 1884, the latter admitted to the witness that he had attempted to procure an abortion upon Maggie Rathburn on June 12, 1884, at the time and place named in the indictment. On further cross-examination the witness said that the prisoner had come to him at the time of the conversation and asked his advice as an attorney and adviser, and that the admissions were made in reply to the question of witness as to what the facts were. The court overruled the motion of the prisoner to rule out the testimony of the witness relating to the alleged admissions, to which exceptions were taken.
    The prisoner was convicted; a new trial was refused, and to reverse the judgment of conviction the present proceeding in error is prosecuted. The errors assigned and relied upon for a reversal of the judgment below are the several rulings which are recited in the foregoing statement of facts.
    
      C. S. Grosvenor and John S. Giles, for plaintiff in error.
    The discharge of the jury was. equivalent to an acquittal. Hines v. State, 24 Ohio St. 134; Mitchell v. State, 42 Ohio St. 383; Adams v. State, 99 Ind. 244; Powell v. State, 17 Tex. App. 345; Whitten v. State, 61 Miss. 717; Maden v. Emmons, 83 Ind. 331; State v. Connor, 5 Cold. 311; Stewart v. State, 15 Ohio St. 155; Dobbins v. State, 14 Ohio St. 493; Wright v. State, 5 Ind. 290; Poage v. State, 3 Ohio St. 229; State v. Walker, 26 Ind. 346; Rulo v. State, 19 Ind. 298; Grant v. People, 4 Parker Cr. Rep. N. Y. 527; McCorkle v. State, 14 Ind. 39.
    The court had no jurisdiction of the case after the January term, 1886, and the entry nunc pro tunc, made at the second term thereafter, was coram non judice and void. Ludlow v Johnston, 3 Ohio 575; Markward v. Doriat, 21 Ohio St. 637; 1 Bish. Crim. Proc., secs. 1296, 1342.
    The minutes of the court on the trial docket, the only testimony offered, was parol evidence and inadmissible. Ludlow v. Johnston, 3 Ohio 579.
    
      There was error in admitting the testimony of Petty. The statutory privilege should be liberally construed. Parker v. Carter, 4 Munf. 273; Jackson v. French, 3 Wend. 339.
    J. A. Kohler, attorney-general, and J. H. Lockari, prosecuting attorney, for the state.
    The motion of the plaintiff in error to be discharged in the court of common pleas was properly overruled, because :
    1. The jury had been impaneled and sworn and the accused stood upon the general,issue of “ not guilty.” In support of this see Harris’ Crim. Law, 306, 307; Nicholls v. State, 2 South, 539; Rev. Stat., secs. 7253-7256.
    2. The motion did not answer the purpose of a plea in bar autrefois acquit. 1 Bish. Or. Proc., secs. 810, 812, 813, 814, 816; Harris’ Crim. Law, 304, 309; Rev. Stats., secs. 7257-7260.
    The court had authority to make the entry nunc pro tunc. 1 Bish. Crim. Proc., secs. 1156, 1160; Freem. Judg., sec. 63; Dobbins v. State, 14 Ohio St. 493.
   Owen, C. J.

It is contended by the plaintiff in error that upon the record of the court as it existed at the time he was put upon his trial at the September term, 1886, he was entitled to his discharge, and that it was not in the power of the court'to abridge or take away that right by so amending the record as to make it appear that the jury, at the former trial, was discharged upon sufficient ground. It is well established that the discharge of a jury in a criminal case without the consent of the defendant, after it has been duly impaneled and sworn, but before verdict, is -equivalent to a verdict of acquittal, unless the discharge was ordered in consequence of such necessity as the law regards as imperative, and that in such case the record must show the existence of the necessity which required such discharge, otherwise the defendant will be exonerated from the liability of further answering'to the indictment. Hines v. The State, 24 Ohio St. 134.

Section '7313, Revised Statutes, as amended 78 Ohio L. 89, provides that “ the court may discharge a jury, Avithout prejudice to the prosecution, for the sickness of a juror, the corruption of a juror, or other accident or calamity, or because there is no probability of the jurors agreeing, and the reason for the discharge shall be entered on the journal.” It is maintained by the plaintiff in error that the discharge of the jury at the January term of the court without the consent of the defendant, and without entering upon the journal some lawful ground for the discharge, was equivalent to an acquittal, and that the court was without jurisdiction to make the nuno pro tune order. Ludlow v. Johnston, 3 Ohio, 575, is cited in support of this proposition. The two propositions upon which that case proceeded are: 1. “An order of court, authorizing an executor or administrator to sell decedent’s lands, made when the power of the court had ceased, can not be made valid by entering it nune pro tune as of a preceding term.” 2. “An order nune pro tunc can not be founded upon mere parol proof of what was ordered to bo done at a previous term, where there is no written minute to sustain it.”

In that case the jurisdiction of the court over the subject-matter of the order made at the prior term had been taken away by legislation, and the evidence relied upon to sustain the order nune pro tune was exclusively parol. Without discussing the soundness of the propositions above quoted, it is enough to say that the facts of the case at bar fail to bring it within either of them. To sustain the assumption of counsel that the court was without jurisdiction to make the order nune pro tune it is necessary to assume (1) that the jury was discharged, at the former term, without sufficient cause, or (2) that if it was not there was no power in the court to make tho order showing that the discharge was upon sufficient ground.

The first assumption is unwarranted and against the real facts, while the second is an assumption of the soundness of tho very proposition in controversy — that the court was without power to make its records show what had been done by it at a former term, but by inadvertence omitted from the journal. The principle is fundamental that every court has a right to judge of its own records and minutes; and if it appear satisfactorily to it that an order ivas actually made at a former term and omitted to be entered by the clerk, it may at any time direct such order to be entered upon the records, as of the term when it was made. State v. McAlpin, 4 Iredell Law, 140; Ludlow v. Johnston, supra, 575; Bothe v. Railway Co., 37 Ohio St. 149; In re Estate of Jarrett, 42 Ohio St. 194; Elliott v. Plattor, 43 Ohio St. 205; Burnett v. The State, 14 Tex. 455; Freeman Judgments, secs. 56 to 68. This power may be exercised in criminal prosecutions as well as in civil cases. Exp. Beard, 41 Tex. 234; Smith v. State, 1 Tex. App. 408; Exp. Jones, 61 Ala. 399. In the case last cited the supreme court sustained an order nune pro tunc of the trial court made at a term subsequent to the trial, showing the number of days hard labor to which the defandant was sentenced, which had been left blank at the trial term. Nor are we able to find any adjudicated cases in which the time for the exercise of this power has been limited. In Massachusetts the record of a judgment was completed, by a nunc pro tune order, after the lapse of twenty years. Rugg v. Parker, 7 Gray, 172. Freeman Judgment, sec. 56. That the evidence upon which the court acted was ample to authorize the order, if there was power to make it, will not be seriously questioned. Metcalf v. Metcalf, 19 Ala. 319; Hegeler v. Henckell, 27 Cal. 491; Freeman Judgments, sec. 61.

In the case at bar the jury was in fact discharged for the reason that there was no probability of the jurors agreeing. This was one of the grounds which authorized' a discharge of a jury in a criminal- case without prejudice to future prosecution upon the same indictment. The fact and reason of the action of the court were duly entered upon the court docket, and all that the court could do wa_g done. Judicial action ivas taken, but there was failure so to make up the journal as to show such action. There was no time.during that term of the court when the prisoner could have availed himself of the discharge of the jury. There was no legal objection to the impaneling of another jury for his trial at the same term. Had this been done he surely could not have urged that he had been virtually acquitted by the discharge of a former jury, without his consent and upon unauthorized grounds; for he certainly could not have resisted, with any show of seriousness, the completion of the record entry of the action of the court at any time during the term. This serves to illustrate that in fact there was nothing in the proceedings of the court which, in legal effect, worked his discharge. Let it be supposed that at that January term the prisoner had been tried and acquitted, and the cleric had failed to enter upon the journal the fact that a jury had been impaneled, a trial had, and .the prisoner acquitted. Would it be claimed, in case of his being put upon his trial at a subsequent term, that there was no power in the court to direct that a nunc pro tuna order be made.to show what action had been in fact taken by the court and jury ? As no rights of third parties could have intervened in either case, it is not easy to see how the two cases can be distinguished. In either case the question resolves itself into one of the power of the court to make its records speak the truth and cause that to appear upon the journal which in fact had transpired in the course of judicial proceedings at a'former term. It is maintained, however, that the case of Markward v. Doriat, 21 Ohio St. 637, is decisive of the case at bar. In that case the defeated party gave notice of his demand of a second trial, which the court minuted upon the court docket. It was not carried into the journal. It was held that the omission to journalize the notice could not be supplied by an order made at a subsequent term. The statute provided (S. & C. 1155, sec. 11) that the party desiring a second trial should, at the term of the court at which judgment was rendered, enter on the records of the court notice of his demand for such second trial.” The court simply say in the opinion: “ The plaintiff did not, at the term of the court at which judgment was rendered, enter on the records of the court notice of his demand for such second tidal ’ as provided by statute. The proceedings at the subsequent term to supply this omission could not have that effect. It was too late.”

It is clear that by plain provision of the statute it was an indispensable prerequisite to the right to a second trial that the party demanding it should enter on the records of the court notice of his demand at the trial term. The party was required to see to it that the entry was made. True, in the case at bar, the statute required that in case of the discharge of the jury before a verdict, the reason for the discharge shall be entered on the journal.” This can mean no more than that the record shall plainly exhibit the true ground upon which the discharge of the jury is ordered. The requirement that the entry shall be made at the term at which the order is made is no more • emphatic than the general requirement that all orders of court not otherwise regulated by statute shall be made to appear of record at the time, or at least at the term at which they are made. It will not be denied that it is of importance, and within the contemplation of the law, that all the proceedings of a court shall be promptly recorded. It is to provide against the contingencies of omission to do this either by accident, inadvertence, or other cause, that the power to supply such omission by orders made nunc pro tunchas been recognized from a very early day. The distinction between the statutory requirement in the case of demand for second trial and that concerning the discharge of a jury is too apparent to call upon us to give the case last cited controlling-effect in the present case. The views we have here expressed lead us to the conclusion that the action of the court below in supplying the omission to enter upon the journal of the court the reasons for the discharge of the jury by a nunc pro tunc order, and in refusing the application of the prisoner to be discharged from further prosecution, was authorized.

That there was no error in rejecting the letters offered in evidence is apparent from what appears in the statement of facts upon this branch of the case.

The statements of Maggie Rathburn, which the defense offered to prove were made to the prisoner and to Miss Benedict, are claimed to have been admissible upon the principle that wherever the bodily or mental feelings of an individual are material to be proved the usual expressions of such feelings, made at the time in question, are original evidence. A thoughtful consideration of the proposed testimony will make it quite apparent that the statements offered relate rather to the opinion .of Miss Rathburn concerning her condition than to an expression of any particular bodily feeling or sensation. There was no error in excluding them.

The action of the court below in permitting the witness, Petty, to testify to the admissions of the prisoner concerning the offense with which he stood charged presents a question of much difficulty.

It may be conceded that the most commonly accepted wiew of the profession is that the privilege which was asserted in the trial below is confined to communications made to an attorney who has authority to practice his profession in courts of record.

It is equally true that there is a growing tendency in the courts to extend the rule of privilege to cases which, though not within the letter, are within the manifest spirit of the rule as it is generally understood. Counsel have assumed that the rule which our civil code prescribes applies as well in criminal proceedings. This has been determined differently by this court in Steen v. The State, 20 Ohio St. 333, and in Schultz v. The State, 32 Ohio St. 280, where it is held that the rules of evidence contained in the code of civil procedure apply only to civil actions and proceedings. This calls upon us to look to the common law and to the reason and logic of the question to determine the rules which are to prevail in the trial of criminal causes. It appears by the bill of exceptions’in this case that Petty had for many years followed the business of practicing law before justices of the peace, but had not been admitted to the bar. It was in his capacity as such attorney that the prisoner sought his 'aid and advice. The admissions made to the witness were so made in reply to the latter’s question as to what the facts were. So far as the record discloses the witness was entirely reputable in his community, and was deemed thoroughly trustworthy. This must be presumed in his favor. He had for many years practiced law in justices’ courts as a regular employment. It was very natural that the prisoner, charged with a grave offense, should seek his aid and counsel. It was, too, most natural, that the prisoner, in answer to his adviser’s question, should freely confide to him the secrets which he would repose in no one who did not sustain toward him the relation of legal adviser. The record discloses that the prisoner was not seeking, simply, the solace of some confidential friend in whom he might confide in the hour of his extremity. On the contrary, it Avas the counsel of some one of superior legal learning and experience he Avas seeking, and it Avas for the purpose of putting his 'legal adviser in possession of the facts AA'hich Avould enable him to give intelligent and valuable legal counsel that the confidence was reposed. Indeed, there was present every element which Avould invoke the application of the general rule upon this subject except the mere form of the admission of the adviser to practice in courts of record. Every consideration of reason, justice, logic, and fair-play would seem to demand that the mere artificial distinction which the state calls upon us to enforce should be made to yield to the modern tendency to apply the reason and spirit of the rule instead of adhering rigidly and sullenly to its letter. The privilege has been held to include scriveners and conveyancers as well as general counsel. 1 Wharton’s Ev., sec. 581; Knight v. Turquand, 2 M. & W. 100; Carpmael v. Powis, 1 Phil. (Eng. Ch.) 687.

In People v. Barker, 59 Mich., s. c., 27 N. W. Rep. 546, it was held that, “ confidential communications made in reliance upon the supposed relation of attorney and client, whether the party assupaing to act as such is an attorney or not, are excluded upon the plainest principles of justice.”

While we find much conflict in the authorities upon this •question, Ave have no disposition to attempt to harmonize them, but prefer to place our solution of it, as applied to this case, upon the vieAvs already expressed, and hold that the witness, Petty, should not have been permitted to testify to the admissions made to him by the prisoner.

We are not called upon to declare the comprehensive rule that all statements made to persons who practice in justices’ courts, during the course of consultation upon legal controversies, are privileged. We simply declare that the peculiar facts of this case called upon the court, below to reject the tesimony of the Avitness, Petty, and in admitting it there was error, for which the

Judgment below is reversed.  