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sion thereof, then you should find him, the ney approved and filed several complaints said W. S. Wishard, guilty of said offense against menibers of the Rossiter family. The of forgery in the first degree, and so say by complaints were all based upon the proceedyour verdict. If you do not so believe, youings had in connection with a civil suit conmust acquit the defendant and say by your cerning the ownership of a set of harness. verdict 'not guilty.'

In one of these cases Tyler secured $200 as “(6) You are instructed that a conviction an attorney fee, and gave one-half of it to cannot be had upon the testimony of an ac- this defendant. The letter of this defendcomplice, unless corroborated by other evi- ant to Tyler shows that it was their comdence tending to connect the defendant with mon purpose and design to defraud the Rosthe offense committed, and the corroboration siters out of the land described in the alis not sufficient if it merely shows the com- leged forged deed. His admissions upon the mission of the offense; nor can one accom- witness stand are sufficient in connection plice corroborate another. An 'accomplice,' with his letter to his codefendant Tyler to as the word is here used, means any one sustain the verdict. Section 2045, Snyder's connected with the crime committed, either Sts., provides: "All persons concerned in the as principal offender, as an accomplice, as commission of crime, whether it be felony an accessory, or otherwise. It includes all or misdemeanor, and whether they directly persons who are connected with the crime commit the act constituting the offense, or by unlawful act or omission on their part aid and abet in its commission, though not transpiring either before or at the time of present, are principals.” the commission of the offense, and whether [7] A conspiracy may be defined generally or not he or she was present, and participat- as a combination of two or more persons ed in the commission thereof. And if you by some concerted action to accomplish some find that the deed set out in the indictment criminal or unlawful purpose or to accomwas forged, and that any witness who has plish some purpose not in itself criminal or testified herein against the defendant was or unlawful by criminal or unlawful means. Mr. is an accomplice, as above defined, then you Greenleaf says: “The connection of the inmust disregard the testimony of such wit- dividuals in the unlawful enterprise being ness in so far as the same is against the de- thus shown, every act and declaration of each fendant, unless corroborated as above stated." member of the confederacy, in pursuance of

There was no request for other instructions the original concerted plan, and with referon the part of the defendant.

ence to the common object, is, in contempla[9] While instruction No. 4 considered by tion of law, the act and declaration of them itself is too general, it is properly limited all, and is therefore, original evidence by instruction No. 5. It is the duty of the against each of them. It makes no difference jury to consider all the instructions together, at what time any one entered into the conand, if when so considered they fairly state spiracy. Every one who does enter into a the law, this is sufficient. A cause should common purpose or design is generally deemnot be reversed because some one of the in- ed, in law, a party to every act which had structions may state the law without suffi- before been done by the others and a party cient qualification. The principle that an to every act which may afterwards be done instruction, which is general in its character, by any of the others in furtherance of such may be limited or qualified by other instruc-common design." Greenleaf on Ev. & 111. tions given, does not contravene the rule that "In cases of crimes perpetrated by several "material error in one instruction calculated persons, when once the conspiracy or comto mislead is not cured by a subsequent con- bination is established, the act or declaration tradictory instruction.” We believe the in- of one conspirator or accomplice in the prosstructions given considered as a whole fair-ecution of the enterprise, is considered the ly and fully state the law applicable under act or declaration of all, and therefore imthe evidence in the case.

putable to all. All are deemed to assent [5, 6] It is also contended that: “The ver- to, or command, what is said or done by any dict and judgment is contrary to the evi- one in furtherance of the common object. dence and contrary to the law.” In support A foundation, however, must first be laid of this assignment, it is argued that: "The aliunde by proof sufficient, in the opinion defendant Wishard had nothing to do with of the court, to establish prima facie the fact the getting of the deed from J. M., J. C., and of conspiracy between the parties; the quesJulia Rossiter to Elwood Rossiter; that he tion of such conspiracy being ultimately for was not present at any of these transactions; the jury." Wharton's Cr. Ev. (9th Ed.) $ that his letter to Pete Tyler clearly shows 698. It is an undisputed fact that the signathat he was expecting bona fide deeds to the tures to the alleged deed were forged. We land; and that there is absolutely no com- think the evidence is conclusive that this petent evidence connecting Wishard with the defendant was an accessory before the fact. forgery of the deed on August 31, 1906.” The Our statute abolishes the distinction between theory of the prosecution was that Wishard, accessories before the fact and principals. Tyler, and Evans conspired together to de By it all accessories before the fact are made fraud the Rossiters. The testimony shows principals. As the acts of the principal are

latter may be charged with having done the also stated to said jury that, 'If they could act himself. We believe the evidence clear- not agree, they had all of the next week in ly shows that it was the common purpose which to deliberate.'” There was no excepand design of the defendants to defraud the tion taken to the statement of the court at Rossiters by securing for themselves the land the time it was made, but the statement was described in the alleged forged deed. It assigned as one of the grounds in the mowould be immaterial whether or not their tion for a new trial. It is now insisted that original purpose and design may have been the court sought to coerce a verdict. Evito secure said land by fraudulent means oth- dently from the failure to take an exception er than the alleged forgery. As a general the claim of coercion is an afterthought. rule in cases of conspiracy, each conspirator [10] The length of time during which a is criminally responsible for the acts of his jury should be required to consider a case confederates committed in furtherance or in is within the sound discretion of the trial prosecution of the common design, or for any court, and this court will not interfere with act which follows incidentally in the execu- the exercise thereof, unless manifestly abustion of the common design as one of its prob-ed. It is impossible to state any rule by able and natural consequences, even though which to determine what language by the it was not intended as a part of the orig-court is sufficiently coercive to invalidate a inal purpose or design. Whether the evi- verdict. This depends upon the circumstancdence tending to prove the unlawful purpose es of each case. We do not think that the of conspiracy is sufficient and that the forg- statement of the court was calculated to ery alleged was in furtherance of the com- prejudice the rights of the defendant. No mon purpose and design were questions for court would by mere physical exhaustion the jury to determine. On the other hand, force a verdict when satisfied that failure to every person entering into a conspiracy or agree resulted from conscientious difference common design already formed is deemed in of judgment as to the weight of the evidence. law a party to all acts done by any of the It is the duty of the court to detain the

other parties, before or afterwards, in fur- jury until satisfied that failure to agree • therance of the common design. It is a con- springs from that cause, and that alone. It ceded fact that this defendant was present must then be left to the sound discretion of the morning following the day of the forgery, the trial judge to determine how long the and, with his codefendants, executed and de- jury shall be detained, and what, if any. livered their deed to the land described in thing, shall be said as to the probable length the indictment. In explanation of this, the of the detention. Unless this judicial disdefendant testifies that the deed was execut-cretion is abused, the verdict should stand. ed for the purpose of securing to him an There being no error in the record prejuattorney fee to defend the Rossiters. As a dicial to the substantial rights of the defendmatter of fact, he as deputy county attor-ant, the judgment of the district court of ney had represented the state in filing the Blaine county is hereby affirmed. criminal complaints, and was therefore disqualified to act as attorney for the Rossiters. FURMAN, P. J., and ARMSTRONG, J.,

[8] As a general rule, where there is evi-concur. dence of a conspiracy to commit a crime, and of its subsequent commission, the state

(5 Okl, Cr. 643) may in support and corroboration thereof show any act of the original conspirators

EVANS v. STATE. intermediate the conspiracy and the crime

(Criminal Court of Appeals of Oklahoma. which apparently recognizes the existence of

May 2, 1911.) the conspiracy, and reasonably indicates prep

(Syllabus by the Court.) aration to commit the crime, or preserve its 1. WITNESSES (8 198*)-COMPETENCY-ATTORfruits, and this notwithstanding such special NEY. act or preparation was not the one discussed

The statute which provides that an attorney or agreed upon by the conspirators. With communication made to him by his client, in

shall not be compelled to testify "concerning any out going further into the testimony, we are that relation, or his advice thereon without the clearly of the opinion that the verdict of the client's consent" (Comp. Laws 1909, $ 5842, subd. jury is abundantly sustained by the evidence. Should be fairly construed and applied accord

4), is but declaratory of the common law, and The record contains the following recital : ing to the plain import of its terms. The stat"Now on this 9th day of October, 1909, jury ute is for the benefit of the client, not the atreturned into open court, all parties being

torney. present, thereupon the court inquired of the Cent. Dig. 88 747, 748, 753; Dec. Dig. & 198.* ]

[Ed. Note.-For other cases, see Witnesses, jury if they had arrived at a verdict, whereupon one of their number stated, 'We dis


IN PROFESSIONAL CAPACITY. agree in finding the cause of this forgery.' An attorney is employed in his professional Whereupon, the court informed them that if capacity when he is voluntarily listening to a they had not agreed they could return to client's preliminary, statement. It is not neces

sary that any retainer should have been promtheir jury room for further deliberation, and lised, paid, charged or demanded, and it makes •For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

no difference, even though the services are gratu- / whole family in there, and they did do that. itous,

There was one of the girls, I would not [Ed. Note.-For other cases, see Witnesses, swear which one it was, but I knew what Cent. Dig. $8 749-751; Dec. Dig. $ 199.*]

she looked like then. I know one or two Appeal from District Court, Blaine County; girls were there. Elwood, the old man, and G. A. Brown, Presiding Judge.

Jesse, and, I think, Linn, was there, and this J. C. Evans was convicted of forgery, and same talk was had, and they told me then appeals. Affirmed.

that Elwood was the man who had signed J. W. Johnson and Seymour Foose, for the deed and Cora or one of the girls had plaintiff in error. Chas. West, Atty. Gen., signed the name of Julia Rossiter to this and Smith C. Matson, Asst. Atty. Gen., for deed. By Mr. Foose: That is all.” Crossthe State.

examination : "By Mr. Boardman: Q. When

was that? A. I think it was in 1906, but the DOYLE, J. Plaintiff in error, J. C. Evans, court records here would show the time it was jointly indicted with P. F. Tyler and w. was. It was right immediately following the S. Wishard for the crime of forgery, as de transaction where Jesse Rossiter was releasfined by section 2560, Snyder's Sts., which ed by order of district court. Q. You had indictment is set out in the companion case seen some of them previous to that? A. of W. S. Wishard v. State (decided at this Yes; I had transacted a little business in a term) 5 Okl. Cr. - 115 Pac. 796. Septem- legal way for one of them just before that, ber 29, 1909, the case was called for trial, but at the time of that transaction someand plaintiff in error demanded a severance, thing was said, but no arrangement made or which was allowed, and his trial commenced. anything of that kind, but this matter I October 1st the jury returned a verdict of think probably was mentioned. Q. Did they guilty, and assessed bis punishment at im- say something about coming in to see you prisonment in the penitentiary for a period again? A. I would not say whether they did of seven years. Motions for a new trial and or not, but I think they did. Q. You were a in arrest of judgment were duly filed. Octo- practicing attorney in this county and state ber 7, 1909, said motions were overruled, and at that time? A. Yes, sir. Q. What did judgment and sentence was pronounced and they say? What was the first thing any of entered in accordance with the verdict. De them said? A. I think the old man done fendant appealed by filing in this court on most of the talking that day. As to just January 5, 1910, a petition in error with what was the first thing said, I don't rememcase-made. The facts are fully stated in the ber. We were talking about this land deal. companion case of Wishard v. State, supra. Q. This same deed? A. Yes, sir; this deed, The assignments of error present but one and also about the transaction in regard to new question,

the old man's place. Two different deals Error is assigned upon the ruling of the were talked about at that time, about the old. court sustaining the motion of the state to man giving a mortgage on his place, and exclude the testimony of the witness Ed about this deed being signed up to Elwood Baker, and in instructing the jury not to Rossiter. Q. Is it not a fact that these peoconsider the same. It appears from his tes ple were in your office at that time seeking timony that he was a practicing attorney at counsel? A. Yes, sir. Q. No question about Watonga; that he was acquainted with the that? A. No question about that; to see Rossiters; that two of the Rossiter boys and what their remedy might be. Q. You were their father came to his office and consulted asking these things with a view to getting at him concerning a criminal case; that about the facts? A. Yes, sir. Q. Trying to set a week the father and his two sons, Jesse aside this deed? A. That was the object of and John, visited his law office. He further it. Q. They did set the deed aside? A. I testified as follows: "Q. Did either one of think the records show it was set aside, those there in your presence and hearing though I had nothing to do with it. They make the statement in the presence of the never employed me in this matter, though we others that Elwood Rossiter had signed the counseled about it twice. Q. After you counnames of both the men to that deed; that seled the first time and they stayed in there is, the name of J. M. Rossiter and J. C. Ros- about an hour, what did you say to them as siter? A. They certainly did. Q. Do you re- they left? Had you decided as to what their member any other occasion that same fall rights were or had you reserved something? when some of these Rossiter women were in A. I know I told them this: They were to your office? A. Yes, sir; these men were come back again soon and were to bring the there and there were other conversations, women. I wanted to talk to all of them and and they were talking of employing me. I see who all the witnesses were, and what said, How many witnesses can you prove they knew about it. Q. What time of year these alleged facts by?' I said, 'I want to was that, the first visit you speak of? A. talk to the witnesses myself.' And we made I think it was in the fall. Q. Of 1906? A. an appointment at that time before that I think so. Q. How long after that was it court adjourned that they were to bring the l that they came in again with some of the

women ? A. Only two or three days. Q. given with a view to its protection. On the Did you talk with them again? A. Yes, sir. other hand, an attorney may render his servQ. Go over the same matter? A. Yes, sir. ices without charge, if he pleases, and hence Q. Did you charge them anything for coun- the mere circumstance that the advice is givsel? A. No, sir; we fell out about the fee, en gratuitously does not nullify the privilege. and I was not employed. I suppose was the In view of the frequency with which some reason, I put my price, and they thought it persons seek to obtain informally and gratuwas too high, and the matter dropped there. itously valuable legal advice, and the laQ. You had got to the point in the conversa- mentable frequency with which attorneys tion where you were going to take the case weakly submit to such an imposition, esif they would pay you a certain fee? A. Yes, pecially in rural communities, it is often difsir; that was a fact. Q. Did you make any ficult to determine whether the consultation demand for services? A. No, sir; never did. is a professional one within the privilege. Q. Isn't that a little unusual? A. It might The local habits of life and the circumstances have been, but I didn't know but what they of the case must largely determine the rulwould employ me. I made the fee, and they ing. The case of a consultation of the opposaid they would see about it, and they did nent's attorney seems rather to fall under annot, and I never charged anything against other head (post, section 2312), as also the them."

case of a consultation by one person not on Counsel for the state here moved to strike his own behalf but as the agent of another out the testimony and withdraw the same (post, section 2017). It follows that a comfrom the consideration of the jury for the munication to an attorney, not in his capaci. reason that the same is incompetent, irrele- ty as such, is without the privilege if made vant, and immaterial, in that the communica- before the relation was entered into or after tion was privileged, which motion was by the it was ended. An interesting question, howcourt sustained.

ever, arises when the communication is made (1) Counsel insist that this was error.

pending negotiations for the retainer. Here Section 5842, Snyder's Sts. Proc. Civ., pro- it would seem plain by the reason of the privvides in part as follows: "The following per ilege that, since the would-be client cannot sons shall be incompetent to testify:

certainly predict the attorney's acceptance (4) An attorney, concerning any communica- of the employment, the former must be protions made to him by his client, in that re- tected in his preliminary statements when lation, or his advice thereon, without the making the overtures, even if the overture is client's consent.” Section 6834, Snyder's Sts. refused. It would further be immaterial that Proc. Cr., provides: “Except as otherwise the refusal was due to a disagreement as to provided in chapter on Procedure, Criminal fees and to the client's own withdrawal by and Procedure, Criminal-Before Justice; the rules of evidence in civil cases are applicable of these matters could he predict tne result

reason of the fee demanded; for upon none also in criminal cases."

until his preliminary statement had been [2] The court correctly decided that the re- made. Obviously, too, if the retainer is aclation of counsel and client existed, and that

cepted, the privilege covers the preliminary the communication was privileged. Undoubt

statement. On the other hand, if the client edly the Rossiters consulted this witness as a

continues his communication after the attorlawyer to secure his services. It matters not ney's refusal to act for him, or if the client that no fee was paid, demanded, or charged, knowingly attempts to retain one who is alor that there was a disagreement as to what ready retained by the opponent, he does not fee should be charged. The statute is declar- need or deserve the protection of the privatory of the common law. Communications made to an attorney in ilege.” Wigmore on Ev. 88 2303, 2304. Mr.

Greenleaf says: “This protection extends to connection with or in the course of professional employment are under the seal of con- every communication which the client makes fidence and entitled to protection as priv. to his legal adviser, for the purpose of pro

fessional advice or aid, upon the subject of ileged communications, even though the sery.

his rights and liabilities. The great object ices are gratuitous. The statute is for the of the rule seems plainly to require that the benefit of the client, not the attorney, and such communications are permanently pro and attorney, whatever it may have consisted

entire professional intercourse between client tected from disclosure, except where the client waives the protection. Prof. Wigmore in, should be protected by profound secrecy."

1 Greenleaf on Ev. $ 240. says: “An attorney may often be brought into a discussion upon the law without any

We find no prejudicial error in the record. purpose of treating his expression of opinion Upon the whole record, it does not appear as a service rendered professionally.

that any mistake was made in convicting the Such

defendant. The judgment of the district a conversation is not privileged, because the reason of the privilege designs to secure only court of Blaine county is therefore affirmed. the freedom of resort to attorneys where some appreciable interest of the client is to FURMAN, P. J., and ARMSTRONG, J., be protected, and the advice is sought and concur.

(6 Okl. Cr. 1)

grant a new trial upon the ground that the deWARREN V. STATE.

fendant should have been either convicted of

murder or acquitted. (Criminal Court of Appeals of Oklahoma. May

(b) The jury have the absolute right to fix the 23, 1911.)

degree of a crime of which a defendant is con

victed when the court submits to them the dif(Syllabus by the Court.)

ferent degrees, and this court will not disturb 1. CRIMINAL LAW (8 116642*)-APPEAL-HARM- their verdict upon the ground that they have LESS ERROR-SELECTION OF JURY.

found the defendant guilty of a less degree of of. Even though the trial court may improper- fense than that which the evidence establishes. ly overrule a challenge for cause to a juror, yet if the defendant peremptorily, challenges said Law, Dec. Dig. $8 1159, 1175.*]

[Ed. Note.-For other cases, see Criminal juror, and if it appears that the defendant did not exhaust all of his peremptory challenges,

Appeal from District Court, McCurtain and that no objectionable juror was forced on the defendant, the error of the court in improp- County ; D. A. Richardson, Judge. erly overruling such challenge will be harmless, W. W. Warren was convicted of the offense and will not be ground for the reversal of a of manslaughter in the first degree, and his conviction.

(Ed. Note.--For other cases, see Criminal punishment was assessed by the jury at imLaw, Cent. Dig. 8 3117; Dec. Dig. $ 116642.*] prisonment in the state penitentiary at MC2. CRIMINAL LAW (88 629, 662, 1130*)—TRIAL Alester for a period of 10 years, and he ap-NAMES OF WITNESSES-APPEAL--GROUNDS peals. Affirmed. FOR REVERSAL – RIGHT TO BE CONFRONTED WITH WITNESSES.

Spaulding & Carr and Armstrong & Ether(a) The constitutional requirement that in idge, for appellant. Smith C. Matson, Asst. homicide cases the defendant shall be furnished at least two days before the case is called for Atty. Gen., for the State. trial with a list of the witnesses who will be called in chief to prove the allegations of the indictment or information, together with their

FURMAN, P. J. [1] First. Appellant compost office addresses, does not apply to witness- 1 plains that the court erred in overruling his es who are called to testify as to the residence challenge to the juror Monteith. It is not of absent witnesses whose names have been fur necessary to discuss the merits of this chalnished to the defendant, and to the further fact that such witnesses testified in the preliminary lenge because the record shows that Monteith examination of the defendant, and that the de- did not sit on the jury, and the record fails fendant was present, and that an opportunity to show that appellant had exhausted his was afforded him for cross-examining such wit- peremptory challenges, or was forced to acnesses.

(b) It is the duty of counsel for appellant in cept any objectionable jurymen on account their briefs to clearly set forth the ground up- of his having been forced to use a perempon which they rely for a reversal, and to give tory challenge on Monteith. Therefore, even the reasons for and the authorities relied upon if the court had erred in overruling appelto support the objections which they make to any matter which occurred in the trial of the lant's objections to the juror Monteith, ap cause in the lower court.

pellant did not suffer any injury. thereby, and (c) The constitutional provision which guarantees to a defendant the right to be confronted therefore cannot now be heard to complain. by the witnesses against him is fully complied

Second. Appellant's second assignment of with when the defendant has had the opportu- error is as follows: "The court erred in adnity to cross-examine the said witnesses in a mitting the testimony of Tom Graham, Jospreliminary trial before a justice of the peace. When this has been done, and upon a subsequent eph Barnes, J. J. McLain, and the purported trial of the said cause, if it is satisfactorily testimony of George Sullivan and Ida Sulproven that such witnesses have, since the former livan, purported to have been taken at the trial, died, become insane, left the state, or that their whereabouts cannot with due diligence be preliminary trial of plaintiff in error." ascertained, or are sick and unable to testify, Appellant in his brief does not state the the testimony of such witnesses given upon said grounds upon which his objections were basformer trial may be proven upon the subsequented to the testimony of Tom Graham, Joseph trial,

[Ed. Note.--For other cases, see Criminal Barnes, and J. J. McLain. Therefore his Law, Cent. Dig. 88 1420–1436, 1542, 1543, 2965– objections to the testimony of these witnesses 2970; Dec. Dig. 88 629, 662, 1130.*]

has been waived. This court has often stat3. CRIMINAL LAW ($ 1120*)--APPEAL-EXCLU- ed that it will not search the record trying SION OF EVIDENCE-SUFFICIENCY OF RECORD.

When a defendant seeks a reversal in this to discover errors which are not clearly set court on account of an alleged error on the part out in the brief of counsel for an appellant. of the trial court in refusing to admit evidence The brief for an appellant should not only offered, the record must show what this offered show that objections were made to the tesevidence was, so that this court can determine timony of a witness, but must go further, as to whether or not it was material and proper testimony, and as to whether or not the defend- and state specifically what these objections ant was injured by its exclusion.

were, and give the reasons for and the au[Ed. Note.--For other cases, see Criminal thority supporting the objections made. See Law, Cent. Dig. $ 2932; Dec. Dig. $ 1120.*]

rule 4 of the Criminal Court of Appeals (1 4. CRIMINAL LAW (88 1159, 1175*)-REVERSAL Okl. Cr. x, 101 Pac. vii). When this is not --GROUNDS.

done, the objections will be held to be wair. (a) When a defendant is on trial for murder, and the jury under proper instructions find ed, and the court will not hunt for reasons him guilty of manslaughter, this court will not I why the objections should have been sustain

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