People v. Donahoe

Mr. Justice Barnes delivered the opinion of the court. The indictment in this case charged a conspiracy between plaintiff in error, Donahoe, one Stiefel, one Aileen Heppner and persons unknown having among other objects the defamation of one Clarence S. Funk. The several objects charged in different counts were to be effected by bringing and prosecuting, if necessary, a civil suit by one John C. Henning against Funk, charging the latter with having debauched and carnally known Josephine Henning, the former’s wife. That there was an indictable offense charged is not open to question. The gist of the case as made out at the trial was that pursuant to such a conspiracy the suit was knowingly and corruptly planned, instituted and prosecuted without foundation and on false testimony to promote one or more of the various objects set forth in the indictment, which, so far as the questions here are concerned, need not be severally stated. The specific points argued in plaintiff in error’s brief are summarized under the contentions that there was (1) a denial of his privilege as an attorney; (2) admission of improper evidence; and (3) prejudicial remarks at the trial. Other contentions are made generally that he was denied constitutional rights and that the verdict and judgment are contrary to law, which are embraced in one or more of the foregoing points, and that the verdict is contrary to the evidence and should have been directed by the court. But it was obviously a case for the jury, and as no instructions are complained of, their verdict should stand unless there was reversible error in one or more of the matters specifically discussed. First, as to the question of privilege. The contention in effect is that because Donahoe was acting as attorney for Henning in said civil suit none of the proceedings therein involving his declarations and acts was admissible against him. The basis of the contention is the generally recognized right of an attorney to speak and act upon information furnished by his client, and the immunity afforded him in the exercise of such right. ,It is the privilege he may invoke in such actions as libel and slander when based on his words or papers used in the course of judicial proceedings. The principle and its application are well recognized. But we are aware of no case where it has been invoked or allowed as a shield to crime. Neither fulfillment of the lawyer’s professional duty, nor protection of his client’s legal rights nor the reason for the privilege requires or justifies any such application or perversion of its use. If the suit against Funk was brought by plaintiff in error, knowing there was no foundation therefor and intending if tried to prosecute it on false testimony, the mere fact that in so doing he exercised the offices of an attorney would not protect him from the revelation of every word and act in pursuance of the unlawful design. Besides, there was much undisputed evidence that the civil suit was not brought in good faith and that the relationship of attorney and client, on which the privilege invoked depended, did not in reality exist between Donahoe and Henning but that the latter was induced by the former merely to lend the use of his name and services to press for the benefit of others a false issue in which he had no personal interest and claimed no legal right. Second. As to claim of improper evidence. Part of the evidence claimed to be inadmissible was that of proceedings had and testimony heard in the civil suit, which were received as proof both of means employed to carry out the conspiracy and to show one or more of its specific objects. If they tended to show either they were unquestionably competent. The law pertaining to conspiracy is too well established and known to require citation of authorities as to the materiality of any such evidence, whether direct or circumstantial, or declarations or overt acts designed to effect its accomplishment. There being prima facie proof of an active part by plaintiff in error in a conspiracy to bring and prosecute such suit without reasonable grounds and on false testimony, the people were not limited to proof of the mere fact that the suit was brought and prosecuted, but were entitled to show every step in its prosecution to its final result, as a part of the means employed to consummate the conspiracy. Whatever was said or done therein to advance the cause to a successful issue was a part of the res gestee. Conducting the trial to a verdict involved not merely proof and argument to support the charge but resistance to every effort made to defeat it, and thus made evidence for the defense in that suit relevant in this to characterize such resistance and the purposes beneath it. Every step taken, every fact relied on, every word used in the trial became so inextricably connected with its purposes and the conspiracy charged, as to be inseparable from the conspiracy or the means exercised to carry it to fruition. The trial as an entirety constituted such means, arid hence any part of it was admissible to characterize plaintiff in error’s attitude, motives, intent and purposes as related to the conspiracy or the means employed to carry it into effect. The parts designated and argued as erroneously admitted in evidence consist of (1) depositions read by the defense; (2) affidavits in support of defendant’s motion to advance the cause for trial; and (3) testimony of defendant’s witness Fortner. None of them was admitted to prove the alleged facts they contained, but as a part of the res gestee as well as to give significance and interpretation to other related proceedings in the civil suit unquestionably competent to show the conspiracy or means employed to effect it. The depositions showed, in substance, that Henning and his wife were living amicably and affectionately - together at the very time the suit was commenced. Donahoe’s legal firm had notice of and participated in the taking of them. There having been evidence in the instant case that Donahoe knew from the beginning that there‘was no basis for the charge that Mrs. Henning’s affections were alienated, any efforts he made in the civil suit to induce the jury to believe to the contrary and thus to thwart the effect of the depositions rendered them competent to give significance to his acts, purposes and motives. The objection that they were introduced against plaintiff in error without opportunity to cross-examine the deponents was based upon an utter misconception of their relevancy as above explained. The affidavits objected to set up, in substance, the falsity and unlawful purposes of the civil suit and reasons for their early exposure and Funk’s speedy exoneration. They were material to give color and significance to Henning’s opposing affidavit which appeared to have been instigated and used to defeat defendant’s attempt to show his innocence and thus to further an object of the conspiracy. Fortner’s testimony set forth an interview with Henning after the suit was begun in which he admitted it was groundless. Donahoe’s argument to the jury sought to impeach its effect. The introduction of evidence that he knew that Henning’s admission was true rendered its materiality obvious. The specific objection that some parts of the interview were hearsay ignores the ground of its materiality, namely, its bearing on Donahoe’s efforts to impeach its value in order to obtain a favorable verdict. Some documents pertaining to the civil proceedings, like the clerk’s wrappers, for instance, may have been incompetent as not part of the res gestee, but were seemingly harmless in character. But as no other parts of such proceedings, than those already considered, are specifically discussed in plaintiff in error’s brief, we shall not review them in detail, except to say of the verdict finding Funk not guilty, that if not a part of the res gestee, it was material to explain evidence that immediately after its rendition Donahoe urged Henning’s flight and concealment, a fact inconsistent with the institution or prosecution of the suit in good faith. It may be said generally, however, that as one of the main issues presented in the instant ease was whether the civil suit was knowingly brought and prosecuted by plaintiff in error without reasonable grounds and for unlawful purposes, every legal incident of the trial so set in motion would seem to be not only a part of the res gestee but relevant as throwing light on the motives for his conduct both before and during the trial. It is also urged as error that the court did not strike out a statement of the People’s witness Deuter that he went to Donahoe’s office about “the time Mr. Hines brought his one hundred thousand dollar suit against Mr. Funk. ’ ’ If error we do not think it such as to require a reversal. Third. As to prejudicial remarks. The Assistant State’s Attorney in his argument to the jury commented on testimony to the effect that Donahoe had induced some one in the State’s Attorney’s office to furnish him a transcript of Mrs. Henning’s testimony before the grand jury that was offered in evidence in his behalf. The objection thereto was not to the right to comment on the circumstance but that the State’s Attorney wilfully misrepresented it. There does not appear to have been ground for any serious misunderstanding on the part of the jury. Comment was also made on the failure of the defense to call certain persons as witnesses shown by the State’s evidence to have acted as agents for Donahoe in carrying out certain parts of the conspiracy. None of them was named as defendant in the indictment. Each was shown, without any attempt at denial, to have carried communications or money from Dona-hoe to either Mr. or Mrs. Henning, or to have aided in keeping them in concealment while the civil suit was pending or otherwise in carrying out the conspiracy. If the testimony of Henning and his wife against Donahoe was not true, a great part of it could have been denied by such persons. And if what was offered by the defense as her statement to Donahoe taken down by and sworn to before Donahoe’s office stenographer, Lamble, who was present in court in Dona-hoe ’s employ, was true, it was significant and a proper subject for allusion that he was not called to verify it. As the State’s Attorney pertinently said, he could not cross-examine the paper but he could the witness. The People, though not required to call the parties so alluded to (Carle v. People, 200 Ill. 494), made proof of their inability to produce any of them except Lamble. After undenied proof of their intimate relationship with Donahoe, and his ability to control their services during the pendency of the suit, and later as to some, we see no error in the absence of any proof that he could not produce them, in alluding to their failure to testify. Such comment under such circumstances is permissible in criminal as well as civil cases. (People v. McGarry, 136 Mich. 316; Commonwealth v. McCabe, 163 Mass. 98; 1 Greenleaf on Evidence, sec. 195 b.) The allusion was no infringement of the statute which forbids reference to the failure of a defendant in a criminal ease to take the witness stand, nor tantamount to shifting the burden of proof. If as has been held by our Supreme Court the state’s attorney has a right to comment on the fact that the testimony of witnesses for the prosecution has not been contradicted or disputed even though the defendant was the only person in a position to have disputed it (People v. McMahon, 244 Ill. 45; Bradshaw v. People, 153 Ill. 156), we fail to see why he may not go further and point out persons other than the defendant, shown by the evidence to have been in such a position and to have had such intimate relationship with the defendant as to justify the inference that he could call them and would have done so, if the testimony for the prosecution was not true. In discussing the failure of the defense to call witnesses present when a statement was sworn to by the witness Slavin, the assistant state’s attorney mentioned Stiefel, who was a codefendant with Donahoe and acquitted. Before objection was made he corrected himself saying he meant ' ‘ Ahem, ’ ’ one of the parties so present. There was no pretense that Donahoe was among those present on the occasion being discussed. The reference not being to his failure to testify or capable of such construction, it did not so far as he was concerned come within the inhibition of said statute. As it did no harm to Stiefel, who but for his acquittal might have complained of it, it is difficult to see how it did to Donahoe, to whom the allusion was not made. We have carefully examined the record and plaintiff in error’s argument and fail to find reversible error. His general legal propositions are unquestioned. But either their application is not apparent or their violation is not shown. No attempt at a direct denial of any specific incriminating facts was made. With the exception of a signed statement by the. People’s witness Slavin, and evidence bearing on its authentication, and a signed statement by Mrs. Henning, both of which so far as helpful to plaintiff in error were expressly repudiated, and a copy of the latter’s testimony before the grand jury, plaintiff in error relied wholly upon legal presumptions and evidence of his previous good character. Valuable as both are, they are not conclusive as against positive undenied evidence of an incriminating nature not improbable in itself and capable of denial if not true. Whether they were sufficient to generate a reasonable doubt of guilt was for the jury to say, and their verdict and the judgment thereon should stand in the absence of reversible error. Affirmed.