Orman v. State. We are of the opinion that the order in question can be and was properly made the predicate for forgery. We are also of the opinion that the court did not err in permitting the State to prove the explanatory allegations in the indictment, this question depending upon the first. Nor did the court err in refusing to quash the indictment. There being no error in the record the judgment is affirmed. Judgment affirmed. ORMAN V. STATE. (22 Tex. Ct. App. 604.) Criminal law-privileged communications to attorney. Communications made by a client to his attorney before the commission of a crime, and for the purpose of being guided or helped in its commission, are not privileged, although the attorney was innocent.* ONVICTION of murder. The opinion states the case. CONVICTION T. A. Blair and Herring & Kelly, for appellant. J. H. Burts, assistant attorney-general, for State. HURT, J. Appellant was convicted of murder of the second degree and sentenced to the penitentiary for fourteen years, for the killing of W. F. Houghston, in the city of Waco, on the eighth day of September, 1885. M. D. Herring was called as a witness for the State while he was conducting the defense on the trial of the case, and over objections of defendant, testified, in substance, as follows: Appellant came to my office on the morning of the killing and said he wanted to consult me privately, and requested my law partner, Mr. Kelly, to step into the other room of our office, which he did. Appellant appeared to be intensely excited- more so than I had ever seen him before. I had known him from his childhood. He told me that he had just heard that deceased, Houghston, had been to his, appellant's, saloon and said that his, appellant's, mother and sister were whores, and that they had been cohabiting (he used a vulgar phrase) with * See note, 36 Am. Rep. 631. Orman v. State. negroes, and that they made in that way all appellant had, and asked me what the law was if he killed Houghston. I then read him the statute of the State concerning killing upon the use of insulting words toward a female relative, and I advised him not to have any trouble with Houghston, that he was a trifling, worthless fellow. Appellant then got up to leave, saying that was all he wanted to know, and as he started off, I noticed that his eyes were filled with tears, and I again, and then again, advised him to have no trouble with Houghston, that he, appellant, had had trouble enough; but he paid no attention to me, but went away. Soon after I started out to pay some dues at the T. B. A. office, and while on the street saw a runaway carriage and horses, and immediately thereafter learned that appellant had killed Houghston. This evidence was objected to because the consultation with witness, and his advice thereon, was privileged, because appellant consulted witness as his attorney and confidential adviser. Was the evidence of M. D. Herring, under the surrounding facts, privileged communications, and hence not competent? "Communications from clients to attorneys are privileged on the ground of public policy, with a view to the safe and proper administration of justice. The protection is not qualified by any reference to proceedings pending or in contemplation. It is adopted out of regard to the interest of justice, and from the necessity of free, unrestrained intercourse between counsel and client. It is better in our judgment to adhere to the rule in a broad and liberal sense, than to weaken its force by exceptions." Crisler v. Garland, 2 S. & M. 136. After a very careful examination of all the authorities accessible to us, we are led to the conclusion that the above rule applies alone to civil cases. What therefore is the rule in criminal cases? In Queen v. Cox, decided on December 20, 1884; 14 Q. B. Div. 153; 15 Cox Crim. Cas. 611; 5 Am. Crim. Rep. 140, most, if not all, the English cases bearing upon the question at issue were cited and commented upon by the court. In that case Judge STEVENS wrote a very lengthy opinion, very carefully comparing the decisions which had before been made upon this subject. In a great many cases he gives a concise statement of the facts under which the question was presented, and from his opinion and the cases therein cited we state the following rules: Orman v. State. 1. To be privileged the communications must pass between the client and his attorney in professional confidence and in the legitimate course of professional employment of the attorney. 2. If the communications are by the client made to the attorney before the commission of the crime, and for the purpose of being guided or helped in its commission, they are not privileged. 3. Nor does the fact that the attorney was wholly without blame in any particular whatever affect the second rule. We are aware that this third rule is in conflict with quite a number of able opinions, but it is supported by the above case, and we believe by the weight of authority. Now let us concede (it being in fact absolutely true), that M. D. Herring, the attorney, was wholly without blame, no party in any respect to the homicide, yet was it not the object of the appellant, in his communication with his attorney, to obtain information with respect to a contemplated crime? And did he not obtain such information as would induce rather than prevent him from the commission of the crime? It is true that the advice of the attorney was strongly calculated to prevent the crime, but from the conduct of appellant it clearly appears that he was seeking law and not advice as to what he would do. This it seems to us was very firmly settled in his mind, and especially if the law should be to his liking. For after the statute had been read to him by which he was informed that the killing would be reduced from murder to manslaughter, he seems to have been satisfied, and was willing to kill Houghston and risk such punishment. Let us suppose that Herring had informed him that he would be guilty of murder of the first or of the second degree, stating to him the punishment for each offense, would it have been as probable that he would have killed Houghston as under the law as truly given to him by Herring? Under the facts surrounding the interview between appellant and Herring, we unhesitatingly answer that it would not. Then under the circumstances attending this interview, it is evident that its effect was to induce (though not so intended by Herring) the appellant to kill Houghston and risk being convicted of manslaughter. This being the effect, the communications between Herring and appellant were not privileged. Queen v. Cox, 14 Q. B. Div. 153; 15 Cox Crim. Cas. 611; 5 Am. Cr. Rep. 140, and cases therein cited. [But on other grounds] Reversed and remanded. A judgment for defendant in an action for malicious prosecution is a bar to a subsequent action for slander for the same accusation, although uttered on a different occasion, but previously to the action for malicious prosecution. LANDER. The opinion states the case. The plaintiff had judgment below. J. N. Stripling, for appellant. F. W. Pope, for appellee. CHIEF JUSTICE. Witherspoon sued Tidwell in the court below for slander. The declaration contained two counts, one for slander and one for libel. To these counts the defendant pleaded that the said trespasses, sayings and doings were res adjudicata between the parties thereto in the Circuit Court of Madison county on the 9th day of June, 1880, upon a trial thereof before a jury, and that the verdict and judgment of the court thereon were for the defendant. Said suit was for malicious prosecution. The plaintiff replied nul tiel record, VOL. LVIII - 84 Tidwell v. Witherspoon. and the record being inspected by the court the plea was sustained to the count for libel and overruled as to the counts for slander. The court should have sustained the plea to all the counts. "In an action for malicious prosecution the plaintiff is entitled to recover damages not only for his unlawful arrest and imprisonment and for the expenses of his defense, but for injury to his fame and character by reason of the false accusation." Carpenter v. Sheldon, 4 N. Y. 579. It is the right of every litigant to have his cause once submitted to the arbitrament of the law; when it is there decided the peace of society demands that it should be at rest forever. It is a principle on which the repose of communities depends. "This principle embraces not only what was actually determined but also extends to every other matter which the parties might have litigated in the case." See Bates v. Spooner, 45 Ind. 493. The plaintiff in the suit for malicious prosecution could have litigated the same matters that are now, after the suit for malicious prosecution has gone adversely to him, made the cause of a new suit. The slanderous words were spoken of Witherspoon on the 8th day of November, 1878, by Tidwell. December 2, 1878, Tidwell caused the arrest of Witherspoon for doing the act with which he had charged him in the slanderous words uttered on the 8th of November, 1878. Witherspoon afterward commenced a suit against Tidwell for malicious prosecution, which was determined June 9, 1880, in favor of Tidwell. That suit was a bar to any other suit for the same charge, though made on a different occasion, if made before suit brought. Root v. Lowndy, 6 Hill, 518; s. c., 41 Am. Dec. 762. The evidence does not show that Tidwell ever spoke the slanderous words at any time after the suit for malicious prosecution was commenced against him by Witherspoon; the slanderous words being the same accusation were necessarily involved in the suit for malicious prosecution, and the determination of that suit concluded Witherspoon's right to bring another suit for slander for words spoken before suit brought. In the case of Carpenter v. Sheldon, above, the court say the injury to the character of the plaintiff is in many cases the gravamen of the action. "An accusation of crime under the forms of the law or a pretense of bringing a guilty man to justice is made in the most imposing and impressive manner and may inflict a deeper injury upon the reputation of the party accused than the same words uttered under any other circumstances. The most appropriate remedy for the calumny in such cases is by the action |