Clark v. State
159 Tex. Cr. R. 187, 261 S.W.2d 339, cert. denied, 346 U.S. 855 (1953)
 

MORRISON, J. The offense is murder; the punishment, death.

The deceased secured a divorce from appellant on March 25, 1952. That night she was killed, as she lay at home in her bed, as the result of a gunshot wound. From the mattress on her bed, as well as from the bed of her daughter, were recovered bullets which were shown by a firearms expert to have been fired by a .38 special revolver having Colt characteristics. Appellant was shown to have purchased a Colt .38 Detective Special some ten months prior to the homicide.

The State relied in main upon three witnesses to establish its case....

Marjorie Bartz, a telephone operator in the City of San Angelo, testified that at 2:49 in the morning of March 26, 1952, while on duty, she received a call from the Golden Spur Hotel; that at first she thought the person placing the call was a Mr. Cox and so made out the slip; but that she then recognized appellant's voice, scratched out the word "Cox" and wrote "Clark." She stated that appellant told her he wanted to speak to his lawyer, Jimmy Martin in Dallas, and that she placed the call to him at telephone number Victor 1942 in that city and made a record thereof, which record was admitted in evidence. Miss Bartz testified that, contrary to company rules, she listened to the entire conversation that ensued, and that it went as follows:

The appellant: Hello, Jimmy I went to the extremes.

The voice in Dallas: What did you do?

The appellant: I just went to the extremes.

The voice in Dallas: You got to tell me what you did before I can help.

The appellant: Well, I killed her.

The voice in Dallas: Who did you kill; the driver?

The appellant: No, I killed her.

The voice in Dallas: Did you get rid of the weapon?

The appellant: No, I still got the weapon.

The voice in Dallas: Get rid of the weapon and sit tight and don't talk to anyone, and I will fly down in the morning.

It was stipulated that the Dallas telephone number of appellant's attorney was Victor 1942....

We now discuss the question of the privileged nature of the conversation. Wigmore on Evidence (Third Edition), Section 2326, reads as follows:

The law provides subjective freedom for the client by assuring him of exemption from its processes of disclosure against himself or the attorney or their agents of communication. This much, but not a whit more, is necessary for the maintenance of the privilege. Since the means of preserving secrecy of communication are entirely in the client's hands, and since the privilege is a derogation from the general testimonial duty and should be strictly construed, it would be improper to extend its prohibition to third persons who obtain knowledge of the communications.

The precise question here presented does not appear to have been passed upon in this or other jurisdictions.

In Hoy v. Morris, 13 Gray 519, 79 Mass. 519, a conversation between a client and his attorney was overheard by Aldrich, who was in the adjoining room. The Court therein said:

"Aldrich was not an attorney, not in any way connected with Mr. Todd; and certainly in no situation where he was either necessary or useful to the parties to enable them to understand each other. On the contrary, he was a mere bystander, and casually overheard conversation not addressed to him nor intended for his ear, but which the client and attorney meant to have respected as private and confidential. Mr. Todd could not lawfully have revealed it. But, in consequence of a want of proper precaution, the communications between him and his client were overheard by a mere stranger. As the latter stood in no relation of confidence to either of the parties, he was clearly not within the rule of exemption from giving testimony; and he might therefore, when summoned as a witness, be compelled to testify as to what he overheard, so far as it was pertinent to the subject matter of inquiry upon the trial...."

We hold that the trial court properly admitted the evidence of the telephone operator....

ON APPELLANT'S MOTION FOR REHEARING

WOODLEY, J. We are favored with masterful briefs and arguments in support of appellant's motion for rehearing, including amicus curiae brief by an eminent and able Texas lawyer addressed to the question of privileged communications between attorney and client....

It is in the interest of public justice that the client be able to make a full disclosure to his attorney of all facts that are material to his defense or that go to substantiate his claim. The purpose of the privilege is to encourage such disclosure of the facts. But the interests of public justice further require that no shield such as the protection afforded to communications between attorney and client shall be interposed to protect a person who takes counsel on how he can safely commit a crime.

We think this latter rule must extend to one who, having committed a crime, seeks or takes counsel as to how he shall escape arrest and punishment, such as advice regarding the destruction or disposition of the murder weapon or of the body following a murder.

One who knowing that an offense has been committed conceals the offender or aids him to evade arrest or trial becomes an accessory. The fact that the aider may be a member of the bar and the attorney for the offender will not prevent his becoming an accessory.

Art. 77, P.C. defining an accessory contains the exception "One who aids an offender in making or preparing his defense at law" is not an accessory.

The conversation as testified to by the telephone operator is not within the exception found in Art. 77, P.C. When the Dallas voice advised appellant to "get rid of the weapon" (which advice the evidence shows was followed) such aid cannot be said to constitute aid "in making or preparing his defense at law." It was aid to the perpetrator of the crime "in order that he may evade an arrest or trial."

Is such a conversation privileged as a communication between attorney and client?

If the adviser had been called to testify as to the conversation, would it not have been more appropriate for him to claim his privilege against self-incrimination rather than that the communication was privileged because it was between attorney and client?

Appellant, when he conversed with Mr. Martin, was not under arrest nor was he charged with a crime. He had just inflicted mortal wounds on his former wife and apparently had shot her daughter. Mr. Martin had acted as his attorney in the divorce suit which had been tried that day and had secured a satisfactory property settlement. Appellant called him and told him that he had gone to extremes and had killed "her," not "the driver." Mr. Martin appeared to understand these references and told appellant to get rid of "the weapon."

We are unwilling to subscribe to the theory that such counsel and advice should be privileged because of the attorney-client relationship which existed between the parties in the divorce suit. We think, on the other hand, that the conversation was admissible as not within the realm of legitimate professional counsel and employment....

Appellant's motion for rehearing is overruled.

 


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