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peril or without being in danger of serious bodily injury to himself, and if she then used that club, she should be found guilty under the law."
The vice in the charge is that it leaves out of account a situation where the husband was not in fact in serious danger as the jury, in the deliberation of the trial upon evidence of all the circumstances, might find, but where the force used in defence reasonably appeared in the heat of the trouble to be necessary to preserve the husband's life or to protect him from serious bodily harm. State v. Bonofiglio, 67 N. J. L. 239; State v. Mount, 73 Id. 582. The error was not cured by the court later in the charge telling the jury that the defendant had the right to protect her husband if they found that the facts justified her in believing that he was in dire peril or in danger of serious bodily harm. The two passages in the charge are inconsistent and we cannot know by which the jury was guided. This error requires a reversal.
We think it well also to call attention to two other slips in order that on the retrial they may be avoided :
(1) In stating the duty of the husband to retreat, the judge at one point of the charge omitted the necessary qualification that he might retreat with safety. State v. di Maria, 88 N. J. L. 116. He was probably misled by the headnote in that case; the law is correctly stated in the opinion.
(?) The judge stated as a fact that the husband was the aggressor, and charged that he who sets up the law of selfdefence cannot be the aggressor and take advantage of the law of self-defence. This question of fact should have been left to the jury. The judge finally did so, but only after having made the statement we have paraphra-ed.
Let the judgment be reversed and the record remitted for a new trial.
93 N.J. L.
State v. Waxman.
THE STATE, DEFENDANT IN ERROR, v. SAMUEL WAX
MAX, PLAINTIFF IN ERROR.
Argued November 6, 1918-Decided June 4, 1919.
By statute it is made unlawful to sell, or permit to be sold, without
a license, certain specified liquors. The permission here made unlawful is such permission as amounts to actual assent and not such permission as involves mere failure to act.
On error to Salem ('ounty Court of Quarter Sessions.
Before GUM MERE, CHIEF JUSTICE, and Justices Swayz): and TRENCHARD.
For the state, Daniel V. Summerill, Jr.
For the plaintiff in error, Thomas G. Ililliard.
The opinion of the court was delivered by
SWAYZE, J. The defendant was convicted of illegal sales of liquor. He did not personally make the sales, but the state claimed that they were made by his employes with his assent. The court charged that if the jury believed that the sales were made by either of the men alleged to be emploves, "and made with the knowledge or what a reasonable man would know to be the act of Waxman, he is responsible for the acts of these men. In other words, if he had knowledge that it was going on, he would be responsible, or if he had reason to know—he can't close his eyes to it and say he didn't know these other men were selling. It is his duty to know what goes on in his place, and if a reasonable man would have known it, he is responsible for the acts.” This charge was erroneous. It attempted to engraft upon the criminal law a theory of liability proper to the law of negligence, but not to the criminal law, where there must be either a criminal
intent or such language in the statute defining the crime as shows that the legislature meant that criminal intent should be unnecessary. The statute in the present case makes it unlawful to sell, or permit to be sold without a license, certain specified liquors. In view of the principle that requires criminal statutes to be strictly construed, we think the permission made unlawful is such permission as amounts to actual assent and not such permission as involves mere failure to act. The consequences of adopting the latter definition would be absurd; for example, it would make it unlawful for a mere outsider to permit a sale though he had no authority to forbid it. Obviously, a construction must be adopted that would prevent so absurd a result. We can think of no safer construction than to attribute to the word "permit” the meaning of “assent.” This would leave it open to a jury to find as a fact under the circumstances of a particular case that the defendant by willfully closing his eyes winked at the offence and thereby tacitly assented and made himself guilty of permitting the unlawful sale within the meaning of the statute. This view condemns the charge, for that failed to leave to the jury the question whether what the defendant failed to do justified the inference of his assent to what the alleged employes did.
It may be well to add that the indictment in the present case averred that the defendant sold, and caused, suffered and knowingly permitted liquor to be sold without a license. The charge allowed a conviction, though none of these averments was proved.
The judgment must be reversed and the record remitted for a new trial.
THE STATE, DEFENDANT IN ERROR, V. HARRY W. SNOOK,
PLAINTIFF IN ERROR.
Argued February 18, 1919-Decided June 4, 1919.
1. On an indictment for manslaughter, the state claimed that de
fendant had caused the death of two persons by reckless driving of an automobile while drunk. Held, that evidence showing the condition of the occupants of the car as to sobriety was admissible as tending to show the probability that the defendaut himself was intoxicated and likely to be careless in his manage
ment of the car. 2. Communications between attorney and client are protected from
disclosure only at the instance of the client.
On error to Mercer County Court of Quarter Sessions.
Before GUMMERE, CHIEF JUSTICE, and Justices SWAYZE and TRENCILARD.
For the state, A. Dayton Oliphant and James llammond.
For the plaintiff in error, John II. kafes and Aaron l'. Dawes.
The opinion of the court was delivered by
SWAYZE, J. The defendant was convicted of slaughter. The claim of the state was that he caused the death of two persons by reckless driving of an automobile while drunk. The prosecutor was allowed to prove the condition of the occupants of the car as to sobriety. It is said that only the condition of the defendant was relevant. We agree with the trial judge that the evidence was admissible. It made it probable that the defendant himself was intoxicated and likely to be careless in his management of the car; and it was not too remote.
The stress of the argument for the plaintiff in error was on the admissibility of the evidence of Hartman, an attorney
at-law. One of the witnesses for the defence was Mimmick. He had been one of the party in the car. On the morning after the accident he consulted with Hartman, and it is now wged that what he said was privileged. Mimmick was interrogated about it on cross-examination and denied that he had made to Hartman statements contradictory to his testimony. Hartman was called by the state in rebuttal and permitted to testify as to contradictory statements by Mimmick.
We agree with the trial judge that Hartman was not, under the facts of the case, attorney or counsel for Mimmick; but even if he had been, the privilege was personal to Mimmick. He did not claim any privilege, and even if there was error in admitting the testimony, it is not assignable by the plaintiff in error. The rule is thus carefully stated by Judge White, speaking for the Court of Errors and Appeals in State v. Loponio, 85 N. J. L. 357, 360:
"Where, therefore, legal advice of any kind is sought from a duly accredited professional legal advisor in his capacity as such, the communications relevant to that purpose, made in confidence by the client, are at his instance permanently protected from disclosure by himself, or by the legal advisor, or by the agent of either confidentially used to transmit the communications, except the client waives the protection.”
The important words for our present question are, “at his instance.”
The passage quoted enlarges somewhat on the language of Professor Wigmore. Tigm. Er., $ 2292, and these words are dealt with by the learned author at section 2321. He there cites Baron Parke as authority for the proposition that the party cannot appeal because the privilege is denied the witness. .
Il'eeks V. Argent, 16 V. & W. 817. Baron Parke relied on a decision of Lord Denman in Varston v. Dounes, 11d. & E. 31. The reasons for the rule are stated by Wigmore at section 2196, together with cases pro and con. We think it a sensible rule. It is applicable where the evidence is admitted since only the witness' rights are affected, but not applicable where the evidence is rejected, since in the latter case the party to the cause may be injured if legal evidence is improperly excluded.