Carpenter, J.
Defendant was convicted under an indictment in which he was charged with unlawfully and corruptly promising the sum of $20,000 to a member of the house of representatives of the State of Michigan, with intent to influence the act, vote, decision, and judgment of said member, in his legislative capacity, on a certain joint resolution then and there pending in the house of representatives, and with unlawfully and corruptly giving said sum to said member with said intent to influence his action on said resolution. Defendant assigns 116 errors. We deem it necessary, however, to discuss but one of these assignments. That relates to the admission of the testimony of. Hon. Rollin H. Person, the judge of the Ingham county circuit court at the time the defendant was indicted. Defendant was subpoenaed as a witness before the grand jury. Arthur J. Tuttle, the prosecuting attorney of said county, testified:
“Mr. Pratt said to me: ‘ I would like to talk to some attorney before I go before the grand jury. I have been up to see Judge Cahill, and for some reason he could not talk to me about it. * * * I would like to see some one that I have confidence in, before I go before the grand jury and give my testimony. Where is Judge Person ? Couldn’t I see him and talk to him ?’ I took him to Judge Person’s room, and introduced him to Judge Person, and they were together for some time, and Mr. Pratt then went back before the grand jury.”
[127]*127Before Judge Person testified, he said:
“While it is immaterial to me personally, I think'I ought to raise the question whether I should state matters that came to me in that way, when I was on the bench; that is, whether it is against public policy for me to be required to state them, * * * Mr. Pratt said that he was before the grand jury, and wanted to get some advice. I said, ‘Mr. Pratt, I cannot give you any advice.’ He stood a moment, irresolute, and I said, ‘ I will say this to you, — that you are not obliged to say anything before the grand jury to criminate yourself.’ He said he knew that, but he wanted advice as to what course he ought to pursue for his benefit. I said, ‘ Mr. Pratt, you had better see an attorney.’ He said: ‘ I have seen"an attorney here, but got no advice from him. I am not acquainted with the attorneys here, and I don’t know how much they may be employed in these matters by various parties against my interest, — where they would conflict our interests.’ ‘ Well,’ I said, ‘ I cannot give you any advice as to what you ought to do for your personal benefit, but you are not obliged to testify to anything that will incriminate yourself ; but, if you do testify, I will say this much to you: Tell the truth, whatever it is.’ He stood for a moment, and burst into tears, like a baby, and said, ‘ That is the last thing my wife said to me before I left home, — was to tell the truth, whatever I told;’ and he dropped into a chair and cried; and in a moment he straightened up and he said: ‘ I must tell. I won’t stand this any longer.’ And he went right on rapidly and told his story.”
At this point, defendant’s counsel objected to Judge Person’s testimony on the ground that the communication in question was confidential, and its disclosure forbidden on grounds of public policy. The trial court ruled that there was nothing exempting Judge Person from testifying (to which ruling defendant excepted), and he proceeded and detailed the statement made to him by defendant. The testimony detailing this statement occupies about 3t>- pages of the printed record. It may be described briefly as follows: Defendant, with the co-operation of a certain prominent State official, planned to corruptly secure the adoption of a certain joint resolution. To carry [128]*128out this plan, defendant delivered drafts to the amount of $20,000 to a prominent member of. the house of representatives.
It is to be noted that the purpose of the defendant (though this does not appear to have been known to Judge Person) was “to talk with some one he had confidence in.” It is obvious, too, that this confidence was given by reason of Judge Person’s professional and official position, and of the advice given by him to defendant. Is the communication made under these circumstances to be regarded as confidential, and its disclosure forbidden by principles of public policy ? Counsel for the people has neither in his argument nor brief endeavored to sustain the ruling of the court below. He has taken a course which merits the highest commendation. Apparently doubtful of the propriety of the ruling permitting this disclosure, he has not endeavored to support it by inapplicable argument or authority. He has contented himself with saying:
“This matter received the careful attention of counsel in the court below. The court admitted the testimony. It is for this court to say whether or not that decision was correct. If it was correct, there is no error in this case. If iucorrect, the conviction should be set aside and defendant discharged, for without this testimony another conviction cannot be obtained.”
It seems to us that the principle which prohibits the disclosure of communications between attorney and client prohibits the disclosure under consideration. That principle is found in the common law, and is not confined in its application to cases where the technical relation of attorney and client exists. In the case of People v. Barker, 60 Mich., at page 297 (27 N. W. 546, 1 Am. St. Rep. 501), this court, speaking through Mr. Justice Champlin, said: ,
“Confidential communications made in reliance upon the supposed relation of attorney and client, whether the party assuming to act as such is an attorney or not, are excluded upon the plainest principles of justice.”
[129]*129The principle extends to communications made under the erroneous belief that the party consulted had consented to act as counsel. Smith v. Fell, 2 Curt. Ecc. 667. The privilege is not confined to communications made for the purpose of obtaining advice. It extends to “communications made to an attorney in the course of any professional employment, relating to the subject of the employment, and which may be supposed to have been drawn out in consequence of the relation in which the parties stand to each other.” Williams v. Fitch, 18 N. Y., at page 551. It is not material that no fee has yet been paid or is to be paid. Sargent v. Inhabitants of Hampden, 38 Me. 581; Wade v. Ridley, 87 Me. 368 (32 Atl. 975); Davis v. Morgan, 19 Mont. 141 (47 Pac. 793).
Have these principles any application to the question under consideration? Defendant informed Judge Person that he wished advice as to what course he should pursue for his benefit. When advised by Judge Person to see an attorney, he made known the circumstances which prevented his acting in accordance with this advice. Thereupon Judge Person said:
“ I cannot give you any advice as to what you ought to do for your personal benefit, but you are not obliged to testify to anything that will incriminate yourself; but, if you do testify, I will say this much to you: Tell the truth, whatever it is.”
This statement of Judge Person was obviously advice, and it was advice which properly should, and in this case did, come from a lawyer to a layman who desired to be advised. It is immaterial that the advice is so simple that an intelligent layman could have given it.
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Carpenter, J.
Defendant was convicted under an indictment in which he was charged with unlawfully and corruptly promising the sum of $20,000 to a member of the house of representatives of the State of Michigan, with intent to influence the act, vote, decision, and judgment of said member, in his legislative capacity, on a certain joint resolution then and there pending in the house of representatives, and with unlawfully and corruptly giving said sum to said member with said intent to influence his action on said resolution. Defendant assigns 116 errors. We deem it necessary, however, to discuss but one of these assignments. That relates to the admission of the testimony of. Hon. Rollin H. Person, the judge of the Ingham county circuit court at the time the defendant was indicted. Defendant was subpoenaed as a witness before the grand jury. Arthur J. Tuttle, the prosecuting attorney of said county, testified:
“Mr. Pratt said to me: ‘ I would like to talk to some attorney before I go before the grand jury. I have been up to see Judge Cahill, and for some reason he could not talk to me about it. * * * I would like to see some one that I have confidence in, before I go before the grand jury and give my testimony. Where is Judge Person ? Couldn’t I see him and talk to him ?’ I took him to Judge Person’s room, and introduced him to Judge Person, and they were together for some time, and Mr. Pratt then went back before the grand jury.”
[127]*127Before Judge Person testified, he said:
“While it is immaterial to me personally, I think'I ought to raise the question whether I should state matters that came to me in that way, when I was on the bench; that is, whether it is against public policy for me to be required to state them, * * * Mr. Pratt said that he was before the grand jury, and wanted to get some advice. I said, ‘Mr. Pratt, I cannot give you any advice.’ He stood a moment, irresolute, and I said, ‘ I will say this to you, — that you are not obliged to say anything before the grand jury to criminate yourself.’ He said he knew that, but he wanted advice as to what course he ought to pursue for his benefit. I said, ‘ Mr. Pratt, you had better see an attorney.’ He said: ‘ I have seen"an attorney here, but got no advice from him. I am not acquainted with the attorneys here, and I don’t know how much they may be employed in these matters by various parties against my interest, — where they would conflict our interests.’ ‘ Well,’ I said, ‘ I cannot give you any advice as to what you ought to do for your personal benefit, but you are not obliged to testify to anything that will incriminate yourself ; but, if you do testify, I will say this much to you: Tell the truth, whatever it is.’ He stood for a moment, and burst into tears, like a baby, and said, ‘ That is the last thing my wife said to me before I left home, — was to tell the truth, whatever I told;’ and he dropped into a chair and cried; and in a moment he straightened up and he said: ‘ I must tell. I won’t stand this any longer.’ And he went right on rapidly and told his story.”
At this point, defendant’s counsel objected to Judge Person’s testimony on the ground that the communication in question was confidential, and its disclosure forbidden on grounds of public policy. The trial court ruled that there was nothing exempting Judge Person from testifying (to which ruling defendant excepted), and he proceeded and detailed the statement made to him by defendant. The testimony detailing this statement occupies about 3t>- pages of the printed record. It may be described briefly as follows: Defendant, with the co-operation of a certain prominent State official, planned to corruptly secure the adoption of a certain joint resolution. To carry [128]*128out this plan, defendant delivered drafts to the amount of $20,000 to a prominent member of. the house of representatives.
It is to be noted that the purpose of the defendant (though this does not appear to have been known to Judge Person) was “to talk with some one he had confidence in.” It is obvious, too, that this confidence was given by reason of Judge Person’s professional and official position, and of the advice given by him to defendant. Is the communication made under these circumstances to be regarded as confidential, and its disclosure forbidden by principles of public policy ? Counsel for the people has neither in his argument nor brief endeavored to sustain the ruling of the court below. He has taken a course which merits the highest commendation. Apparently doubtful of the propriety of the ruling permitting this disclosure, he has not endeavored to support it by inapplicable argument or authority. He has contented himself with saying:
“This matter received the careful attention of counsel in the court below. The court admitted the testimony. It is for this court to say whether or not that decision was correct. If it was correct, there is no error in this case. If iucorrect, the conviction should be set aside and defendant discharged, for without this testimony another conviction cannot be obtained.”
It seems to us that the principle which prohibits the disclosure of communications between attorney and client prohibits the disclosure under consideration. That principle is found in the common law, and is not confined in its application to cases where the technical relation of attorney and client exists. In the case of People v. Barker, 60 Mich., at page 297 (27 N. W. 546, 1 Am. St. Rep. 501), this court, speaking through Mr. Justice Champlin, said: ,
“Confidential communications made in reliance upon the supposed relation of attorney and client, whether the party assuming to act as such is an attorney or not, are excluded upon the plainest principles of justice.”
[129]*129The principle extends to communications made under the erroneous belief that the party consulted had consented to act as counsel. Smith v. Fell, 2 Curt. Ecc. 667. The privilege is not confined to communications made for the purpose of obtaining advice. It extends to “communications made to an attorney in the course of any professional employment, relating to the subject of the employment, and which may be supposed to have been drawn out in consequence of the relation in which the parties stand to each other.” Williams v. Fitch, 18 N. Y., at page 551. It is not material that no fee has yet been paid or is to be paid. Sargent v. Inhabitants of Hampden, 38 Me. 581; Wade v. Ridley, 87 Me. 368 (32 Atl. 975); Davis v. Morgan, 19 Mont. 141 (47 Pac. 793).
Have these principles any application to the question under consideration? Defendant informed Judge Person that he wished advice as to what course he should pursue for his benefit. When advised by Judge Person to see an attorney, he made known the circumstances which prevented his acting in accordance with this advice. Thereupon Judge Person said:
“ I cannot give you any advice as to what you ought to do for your personal benefit, but you are not obliged to testify to anything that will incriminate yourself; but, if you do testify, I will say this much to you: Tell the truth, whatever it is.”
This statement of Judge Person was obviously advice, and it was advice which properly should, and in this case did, come from a lawyer to a layman who desired to be advised. It is immaterial that the advice is so simple that an intelligent layman could have given it. This would perhaps characterize the best legal advice that ever was given, but it would be legal advice none the less. If it were true that the course of action prescribed by this advice was the only proper course to pursue, a relation of confidence nevertheless resulted from its being given. But it is not true that the course of action prescribed by this advice is the only course an honest lawyer might have [130]*130advised defendant to follow. It is quite conceivable that a lawyer having regard to the personal interests of defendant-acting from the highest motives, might have said: "Testify to nothing that is not true, but, if you are asked to testify to .anything that may incriminate you, I advise you to decline to answer, upon that ground. ” It is clear that defendant then and there decided to adopt and act upon the advice which Judge Person had given him, and, as a result, gave his confidence, and made the communication under consideration.
If Judge Person had not been, as he was, the judge of the circuit court for the county of Ingham, who had convened the grand jury, the principles of law above referred to would have prevented his disclosing the communication respondent made to him. It is true that Judge Person’s position as judge of the circuit court prevented his becoming, in law, respondent’s attorney. But it did not, in fact, prevent his advising respondent what course to pursue. How is the principle which regards as confidential communications between attorney and client affected by the fact that the attorney in this case was also a judge ? If it be true that the fact that the attorney was the judge prevented his legally acting as attorney, it is also true that the fact that he occupied that position gave an increased weight to his advice. The reasons for regarding as confidential communications made in consequence of advice from an ordinary attorney apply with full force, and are re-enforced by others, when that advice emanates from an attorney who is also a judge. The law protects these communications as confidential, because of the nature of the confidence which exists between, the client and the attorney of his choice. That confidence is not diminished, but is increased, when the advice is given by the judge, authorized not merely to express'an opinion, but to declare the law. Not often will a judge undertake to give legal advice. Circumstances may, however, as in this case, make it his duty to give it. When they do, he will not-, in any technical sense, become the attorney of the person [131]*131to whom it was given. But if, as a result of such advice, he receives the confidence of that person, the principles of public policy applicable to attorney and client require that -confidence to be respected.
I think our decision in this case might be based on another ground, viz., the communication under consideration is privileged because made to the judge in control of the deliberations of the grand jury, before whom defendant had been- called as a witness. Defendant, wishing advice as to what testimony he should give before the grand jury, and having no opportunity to consult a lawyer of his own choice, went directly to Judge Person, who had the power to compel him to testify. See People v. Forbes, 143 N. Y. 219 (38 N. E. 303); Minters v. People, 139 Ill., at page 365 (29 N. E. 45). If defendant had gone before the grand jury, and had refused to answer questions put to him, his right to persist in such refusal would have been determined by Judge Person. See above cases. It is obvious that whatever Judge Person- thus learned — and in that event he would have learned what testimony defendant had given — would have been privileged. If in that manner Judge Person had learned all that he did by the communication under consideration, the entire disclosure would have been privileged. Is it to be said that, because defendant anticipated his dilemma, and obtained this advice shortly before it was necessary to act upon it, he thereby loses the privilege which he would otherwise have had ? I do not think so. I think we should look upon Judge Person as the judge in charge of the grand jury, the advice given by him as advice respecting tesitimony to be given before said grand jury, and that we should therefore decide that the communication made in consequence thereof is privileged, in accordance with the principle that governs testimony before said grand jury.
It follows from this reasoning that there was error in receiving the testimony of Judge Person; and inasmuch as, according to the statement of counsel, and according [132]*132to our own judgment of the record, there can be no conviction without this testimony, the conviction will not only be set aside, but the defendant will be discharged from custody. •
Moore and Montgomery, JJ., concurred with Carpenter, J.