Geben, Judge,
announced the opinion of the Court:
The record in this case shows, that the defendant "William S. Douglass, now put in a plea to the indictment, and the jury tried the case and rendered a verdict, when no issue had ever been made. The Attorney-General admits very properly, that this is a fatal error and that court could not, on such a verdict, render any judgment. The judgment rendered must therefore be set aside, reversed and annulled, and the verdict set aside, and the case remanded to the circuit court of Grant, to be further proceeded with.
It is well settled, that if a verdict has been rendered without any issue being joiuod, it is a mere nullity, and no judgment can properly be rendered upon it, whether it be a civil or a criminal action. See Stevens v. Taliaferro, 1 Wash. 155; Grymes v. Pendleton, 4 Call. 130; Taylors, &c., v. Huston, 2 H. & M. 161; Keer v. Dixon, 2 Call. 319; Wilkinson’s administrator v. Bennett, 3 Munf. 316; Sydnor v. Burke, 4 Rand. 161; McMillion v. Dobbins, 9 Leigh 422; Rowans v. Givens, 10 Gratt. 250; Baltimore and Ohio Railroad Company v. Gettle, 3 W. Va. 376; Baltimore and Ohio Railroad Company v. Faulkner, 4 W. Va. 180; Gallatin’s heirs v. Haywood’s heirs, 4 W. Va. 1; Baltimore and Ohio Railroad Company v. Christie, 5 W. Va. 325; State v. Conkle, alias Swank, 16 W. Va. 736. In the last of these cases this Court held that it was a manifest error for the court to enter up a judgment on a verdict in a felony [778]*778case, when the record showed there had been put in a plea of not guilty, hut it had been improperly put in by the attorney of the prisoner, instead of being plead by him personally. It is much more manifest, that such judgment cannot be property entered on a verdict where the record shows, that no pica of not guilty had been put in at all. The indictment in'this caséis objected to? because it was made by a grand jury at a special term, ordered on April 3, 1877, by the circuit judge to be held on the 5th day of June, 1877. This was done, and the grand jury summoned under the order of the circuit judge made in strict accordance with the seventh and tenth sections of ch. 15 of the Acts of 1872-3.
The discretion conferred on the circuit judge by the tenth section, is one exercised with or without an application to him; and the grounds on which he has exercised the discretion of holding a special term for the trial of a prisoner confined in jail, need not appear. And when therefore, this discretion has been exercised, it can not be reviewed by this Court. If the prisoner is confined in jail the law presumes, that he is benefited, not injured by a speedy trial. In this case, the court granted him a continuance of the case to the regular term. There is therefore no ground for this assignment of. error.
It is claimed, that the proceedings are erroneous, because it does not from the record appear, that the prisoner was examined and committed by a justice under the Acts of 1875 ch. 86. This was a matter, which preceded the indictment and constitutes no part of the'record of the case, and was properly omitted in copying the record. "We deem it unnecessary to express any opinion on the question, whether the circuit court erred in refusing to change the venue of the trial, because of the excitement in the community which existed at the time of the trial, and the supposed difficulty in then obtaining a fair trial on that 'account in Grant county. The trial took place within five months after the murder. But now more than five years have elapsed, and it may well be, that the excitement produced by the murder of Iliser has subsided and even if a fair trial could not then bo had in Grant county, it would not follow, that after this great lapse of time it cannot be had. Whether the case ought to be tried [779]*779in that county now, we have no means of determining, and anything we might say with reference to whether the trial should have then been had in that county, would in little or no degree, enlighten the circuit judge as to his duty in this respect, if he he again asked to to remove the case for trial to some other county.
The court did not err in permitting the evidence named in the fourth bill oí exceptions, to go to the jury. The statement of the witness, that the track he saw in the mud, made by the prisoner was similar to the track in the mud near where the murder occurred, though he had never measured the track made by the prisoner and had lost his measure of the track found near the place of the murder, was of course very weak evidence to identify the prisoner as the murderer; yet the court could not say, that it had no such tendency and could not therefore properly exclude it from the jury.
It only remains to determine, whether the court erred in permitting the witness to prove before the jury, that he had obtained from the defendant’s counsel, a pistol which he showed the jury, there being evidence in the cause tending to show, that this was the pistol with which the murder was committed. And it being proven, that the pistol came into the hands of counsel, solely by reason of a communication from the defendant, while he the .attorney was acting as counsel for him in this cause, as set out in exceptions two and three, which have been given at length in the statement ot the case; and also, whether the court erred in requiring this attorney to state to the jury, where he found this pistol, as set out in the fifth exception, also set out at length in this statement of the case.
When this, ease was submitted to the Court, at its spring term, this Court found that on these important points, the counsel had referred to no authorities; and it called upon them to examine these points and refer the Court to any authorities they could find bearing on them. The counsel of the defendant has since filed additional notes on this subject, but the Attorney-General has declined replying to them and has presented no views to the Court on these points. We feel it nevertheless our duty to determine these questions. Nor can we delay longer their determination, though we [780]*780have been able to find no authorities bearing directly on these questions. The defendant has been in the penitentiary some five years, and his case has been submitted to this Court some six months.
The 5th section of article 8 of our Constitution, Acts of 1872-3 p. 26 provides: “When a judgment or decree is reversed or affirmed by the Supreme Court of Appeals, every point fairly arising upon the record of the case shall be considered and decided.” These points do fairly arise and must be decided. Nothing would be gained by omitting to decide theni, for on another trial they must again arise, and if not decided, doubtless there would be another writ of error hereafter awarded, and these points would be again presented to this Court for decision.
In considering these questions we must bear in mind, that it is'a fundamental principle of the law of evidence, that professional communications made by a client to his counsel, are always to be excluded from the jury; and also the grounds on which this exclusión rests, that is, on grounds of public policy, because greater mischiefs would probably result from requiring of permitting their admission, than from wholly rejecting them. If they were in anj7 event, to promote the ends of justice in the particular case, to be allowed to go before a jury, the result would be highly prejudicial to the general administration of justice in other cases. As it would effectually deter all' clients from making full and confidential communications to their counsels, and unless they can do so safely and do actually do so, the ends of justice could not in many cases be attained, See Chahoon’s Case, 21 Gratt. 836, and Parker v. Carter et al., 4 Munf. 273.
The spirit of this law of evidence would obviously be violated, if we were to confine the communications thus excluded, to the words used by the client in his conversation with his counsel, and accordingly it is held, that letters or papers, or books, left by a client with his attorney, relating to the matter about which he has been employed, cannot be required to be produced. See Lynde v. Judd, 3 Day (Conn.) 499; Jackson v. Burtis, 14 John (N. Y.) 391; Kellogg v. Kellogg, 6 Barb. (N. Y.) 116; Durkee v. Leland, 4 Vt. 612. State v.Truman Squires, 1 Tyler (Vt.) 147. Nor will the attorney be [781]*781permitted to disclose any information, which he has derived from his client confidentially, whether hy oral communication, or from hooks and papers shown to him by his client. See Crosby v. Berger, 11 Paige (N. Y.) 377. And the fact, that though the disclosures made hy the client to his attorney, may be such as to show, that the client had been guilty of a fraud prior to such disclosure, this will furnish no reason for relaxing the rule, and permitting the attorney to disclose these communications establishing fraud on his client. See Bank of Utica v. Mersereau, 3 Barb. Chy. R. (N. Y.) 595, 598; Gray v. Fox, 43 Mo. 570. Cromack v. Heathcote, 49 B. Mon. Rep. 587; Doe v. Harris, 5 Carr. & Pay R. 592; Foster v. Hall, 12 Pick. R. 89. The propriety of these decisions in the application of this principle, results from the very grounds on which the principle is based. Lord Chancellor Brougham well says in Greenough v. Gaskell, 8 Eng. Chy. 394: “The foundation of this rule is not on account of any particular importance which the law attributes to the business of the legal professors, or any particular disposition to afford them protection. But it is out of regard to the interest of justice, which cannot he upholden and to the administration of justic*'. which cannot go on, without the aid of men skilled in ju.-i-Vi ndence, in the practice of the courts, and in matter, affecting rights and obligations, which form the subject of all judicial proceedings.” Or as he said in another case, Bolten v. The Corporation of Liverpool, 8 Eng. Chy. 360: “If such communications are not protected no man would dare consult a professional adviser, with a view to his defense, or to the enforcement of his rights; and no man could safely come into court, either to obtain redress, or to defend himself.” Green-leaf, in his work on Evidence, vol. 1 § 240 p.' 281 of thirteenth edition says: “The great object of the rule seems plainly to require that the entire professional intercourse between client and attorney, Avhatever it may have consisted in, should he protected hy professional secrecy.” Thus in the case of Robson et al. assignees of Blackey & Buchanan, v. Kemp et al., 5 Esp. R. 52, it was claimed, that a certain paper had been destroyed with a fraudulent design hy the bankrupt, and to establish its destruction the attorney of this bankrupt was called upon to testify, that he saw it destroyed. He stated, [782]*782that all he.knew about the destruction of this paper, he had acquired from being the counsel and attorney of the bankrupt. Objection was then made to his testifying to his having seen this paper destroyed, and it was contended, “that the privilege of an attorney extended no further than to his being prevented from disclosing matters communicated to him by his "client; hut those things which wore facts, an attorney had always been hound to prove, whether he came to a knowledge of them one way or another.” But Lord Ellenborough excluded the evidence of the attorney. He said: “This is a transaction with which the party has only become acquainted from being employed as attorney. The act cannot he stripped of the confidence and communication as an attorney, the witnesses being then acting in that character. One sense is privileged as well as another. lie can not be said to be privileged as to what he hears, but not as to what he sees, when the knowledge acquired as to both has been from his situation as an attorney. I therefore think, if the only knowledge he has, as to the destruction of this instrument, was acquired from the confidential communication made to him as an attorney that he cannot be examined as to it. If therefore, he knew of the destruction of this instrument by any mode except from the circumstances of his being so concerned he is bound to disclose it, not otherwise.”
In this same case, see 4 Esp. 235; this attorney was called upon as a witness to prove, that the bankrupt whose assignees were plaintiffs in the suit, had made a fraudulent deed to his son. The attorney stated, that he was both the attorney of the father and the son, when he drew the deed and saw it executed. Lord Ellenbrough said: “I do not think he is bound to disclose any matter of which he has so obtained knowledge in the character of attorney by reason of the communication which took place between his client and another person, though that person also emplbyed him as his attorney pro pace vice; but evidence of the deed itself stands on a different footing. An attorney from his solicitor is bound to prove the character of a deed; that is a fact no way connected with any information obtained in his character of attorney. I therefore think that he may be examined [783]*783as to that fact; and. also as to the contents of the deed itself,. in case it has been lost.”
Applying these .principles as illustrated by these cases, to the case before us, it seems to me clear, that all the testimony of the attorney for the defendant as set out in the fifth exception, stated at length hereinbefore, ought to have been rejected by the court, and it erred in permitting it to go to the jury. All that the said attorney knew about this pistol, or where it was to be found, he knew only from the communications which had been made to him by .his- client confidentially and professionally, as counsel in this case. And it ought therefore, to have been entirely excluded from the jury. It may bo, that in this particular case this evidence tended to the promotion of right and justice, but as was well said in Pearce v. Pearce, 11 Jar. 52, in page 55, and 1 De Gex & Smale 25—27: “ Truth like all other good things may be loved unwisely, may bo pursued too keenly, may cost too much. And surely the meanness, and the mischief of prying into a man’s confidential communications with his legal adviser, the general evil of infusing reserve and dissimulation, uneasiness and suspicion and fear, into these communications which must take place, and which, unless in a condition of perfect security, must take place uselessly or worse, are too great a price to pay for truth itself.”
These enormous evils are not avoided by doing as the circuit court did, while forbidding the attorney to state, what his client had told him about this pistol, still required him to tell where it had been concealed, and where he found it from the directions of client. This action of the court was practically as mischevious in all its tendencies and consequences, as if it had required him to state everything, which his client had confidentially told him about this pistol. It would he a slight safeguard indeed, to confidential communications made to counsel, if he was thus compelled substantially, to give them to a jury, although he was required not to state them in the words of his client.
The question whether the court erred in permitting a witness to prove, that the pistol which was produced, and concerning which there was evidence tending to show that, it was the same with which tire murdered man was shot, was procured [784]*784from the attorney for the defendant, is one much more difficult of solution.
I have been unable to find any authority bearing directly on this question. But it may be regarded as well settled, that though the confessions improperly obtained are not admissible, yet any facts, which have been brought to light in consequence of such confession, may be received in evidence. Thus where a prisoner was indicted as an accessory after the fact for having received property, knowing it to be stolen, and had under promise of favor, made a confession, and in consequence of it, the property had been found in his lodgings concealed between the shuckings of his bed; it was held, thatthefact oí finding the stolen property in his custody might be proved, although the knowledge of it was obtained by means of an inadmissible confession. Rex v. Warickshall, 1 Leach Crown Law Cases 242. See Dorothy Money’s Case stated in note to said case p. 250. So in Rex v. Harris, R. & M. C. C. R. 338; where a shirt had been stolen and buried, and the prisoner pointed out the place where it Avas buried and the place was examined and the shirt found. So in Thurtell’s Case cited in Alison Cr. L. of Scotland p. 584; and Joy 84. Although a confession obtained by means of promises or hopes of immunity held out, could not be used in evidence against a party, yet the fact, that the goods were recovered or the corpse found in consequence of the confession, at the place mentioned in the confession, was held to be receivable in evidence. So in Lockhart’s Case, Leaches Crown Cases p. 329; where a prisoner indicted for stealing a number of diamonds and pearls, had been improperly induced to make a confession, from which it appeared, that he had disposed of a part of them to a certain person; it was held allowable on the part of the prosecution, to call that person to prove, that he had received the property from the prisoner.
There are some cases which have gone even further than these three and have held, that where the prisoner has been induced by improper means to confess to the stealing of goods, and to tell where they were concealed, testimony has been permitted not only to prove the finding of the goods and the place where they were found, but also to prove that the pris[785]*785oner in Ms confession described this-as the place where they would be found. Grant’s Case and Hodge’s Case, 2 East P. C. 657 and 658.
In such case it is clear, that the bare fact of finding the goods in a certain place might be no sort of evidence against the prisoners, unless this fact was coupled with the knowledge of tlie prisoner, that the goods were there; and this knowledge of the prisoner was only ascertained by letting in evidence of a portion of his confession, which had been improperly obtained from him. And the propriety of this has been seriously questioned. Thus in Harvey’s Case, 2 East P. C. 658, Lord Eldon, C. J., said: “That where the knowledge of any fact was obtained from a prisoner under such a promise as excluded the confession itself from being given in evidence, he should direct an acquittal unless the fact itself proved would have been sufficient to warrant a conviction without any confession leading to it; and in that case he so directed the jury. But the modern English decisions seem to incline to permitting so much of the confession as relates strictly to the fact discovered by it, but no more to be given.in evidence. The reason for this seems to be, that it is considered, that the only reason for rejecting extorted confessions is the apprehension, that the prisoner may have been induced to say what is false, but the fact discovered shows, that so much of the confession as immediately relates to it is true. 2 East P. C. c 16 s 94 p 658; Reg. v. Gould, 9 C. & P. 364; (38 Eng. C. L. R. 156.)
But this can hardly be fairly regarded as the settled law in England, for in Reg. v. Bernman, C. Cox C. C. 388, while the finding of a child’s body was presented as a fact to be found, yet Earle, J., refused to permit the confessions of the prisoner improperly obtained from her, and her statement where it was to be found to go to the jury. He said, “ he could not allow the finding to be thus connected with the prisoner.” And in Rel. v. Griffin, R. & R. 151, the court was divided on a question apparently involving this point; but a majority of the court, seven judges concurring permitted the statement of the prisoner obtained from him improperly, when he gave up a stolen bank note, to identify it as the note stolen from the prosecutor from this judgment, so far as [786]*786it permitted the statement of the prisoner thus obtained, to establish the identity of the notes produced by the prisoner as the notes stolen, two of the judges dissented. In Frederick v. The State, 3 W. Va. 695; the Court of Appeals of this State, seem to have acted on the views of a majority of the court in this English case.
The American decisions show the same diversity of opinion on the question, whether a confession obtained from a prisoner by threats or promises, can be used against him for any purpose, or whether when such confession is corroborated by the finding of the stolen goods or dead body, where the prisoner said it could bo found; so much of the confession as. is thus shown to be true, that is the admission of the prisoner that he knew where the goods stolon, or the dead body was hidden, may not be used against the prisoner. The weight of mere authority hero as in England, seems to be in favor of admitting so much of an extorted confession to go to the jury as shows, the knowledge of the prisoner where, the stolen property or corpse was hid, when it is found, where the prisoner in the confession extorted from him said it was, but there are highly respectable American as well as English authorities that hold that, every part of such extorted confession should be excluded from the jury. But the American authorities all agree, that though a confession obtained by threats or promises from a prisoner, ought to be excluded, yet if in such confession he states where the stolen goods or body of the murdered person are to be round, and in consequence thereof they are found in the place indicated, the fact may be proven where and when the stolen goods or the corpse of the murdered man was found.
The American as well as the Euglish cases, only differ as to whether you can show the knowledge of the prisoner, as to where the stolen goods or the corpse of the dead man was found by such extorted confessions, and thus by his confession, connect him with the fact, that the goods or corpse had been concealed in that particular place. Some holding you may, others that you cannot, but all agreeing, that the simple fact, that the goods stolen or the corpse was found in a particular place, no matter in what manner the information was obtained, which led to the finding of the goods or body [787]*787in such place. This will I.think he found to he the view taken ky the American authorities, as. will appear from an examination of the following cases. Com. v. Knapp, 9 Pick. 496; State v. Brick, 2 Harring. 530; State v. Crank, 2 Bailey 77; State v. Vaigneur, 5 Rich. 391; Jordan v. State, 32 Miss. 382; Belote v. State, 36 Miss. 96; Jane v. Com. 2 Met. (Ky.) 30; Elizabetha v. State, 27 Tread. 329; People v. Hoyyen, 34 Cal. 176; People v. Parton, 49 Cal. 632; Fredrick v. State, 3 W. Va. 695; Rice v. The State, 3 Heisk. 215; Strait v. State, 43 Texas 486; State v. Mortimer, 20 Kan. 93; State v. Due, 7 Foster 256; State v. Garvey, 28 La. Ann. 925.
From these authorities English and American, we deduce this law: First. If a murder is committed, and the prisoner by threats or promises is induced to confess his guilt, this confession cannot he used against him. Second. If in such. confession he states, that the corpse of the murdered man is buried under the prisoner’s house, and it is found there the fact, that it was found there may he proved at the trial, though it might have a strong tendency to establish the guilt of the prisoner.
This conclusion is well sustained by both the English and American authorities; and it seems to me obvious, that no other conclusion can be reached, for if in such a case it was held, that the commonwealth could not on the trial prove, that the body was found buried under the prisoner’s house; the result would bo, that the commonwealth would be deprived of very important and necessary evidence by the fact that some officious intermeddler had secured a confession from the prisoner by improper threats. If such improper threats were used it is clear, that the confession of the prisoner so obtained, ought not to be used against him, and all the authorities agree, that it cannot. But if in order to protect the prisoner, we were to go further and say, that the commonwealth should, because of such threats, be deprived of the right to prove, that the body of the murdered man was found buried under the prisoner’s house would be obviously unjust to the public, as for all that can be known, this fact might have been discovered even if such improper threats and such a confession had never been made. Thirdly. If such confession was, that the prisoner had committed the [788]*788murder and the body of the murdered man was buried in a remote place, which in itself would attach no suspicion to to the prisoner as the murderer, the authorities are not agreed, as to whether the commonwealth on the trial would be confined to the simple proof of the finding of the body buried in this remote place, or whether it would be permitted further to prove, that it was found in this remote place in- consequence of such confession of the prisoner indicating that it would be found there.
This is an important question for it is obvious, that if the commonwealth is permitted to prove in this way the knowledge of the prisoner, where the body of the murdered man was buried, it would in many eases go very far towards 1ns conviction. And his confession improperly extorted from him, would lead to his conviction. This would differ in effect but little from permitting the whole extorted confession to go before the jury. The decisions which justify this, are based on the assumption, that the only reason why a confession however improperly obtained, is excluded from being given in evidence is, that if it was improperly obtained, it is almost or quite as likely to be false as true; and that as the body in such case was found buried where the prisoner stated it was to be found, it proves incontestably the truth of that portion of his confession, which stated it was buried there, and therefore this much and this much only of such confession, ought to be allowed to go to the jury in evidence.
If the assumption, that this is the only ground for excluding from evidence an extorted confession, then it must be admitted thar this reasoning is sound; but I must be permitted to express my doubt as to the truth of this assumption, though the text writers generally assign the probability of its falsity, as the reason for excluding such extorted confession. But I am rather iuclinod to the opinion, that while this is unquestionably one of the reasons for this exclusion, yet it is not the only one, and that it is or should be excluded also, because it is prejudicial to good morals and the real public interest, which is not to convict even criminals by using against them evidence, which has been improperly extorted from them by either threats or promises. And if this be so, nothing should be permitted to be proven in such case, [789]*789but the simple fact, that the body of the murdered man was found buried in such remote place and the fact, that the prisoner knew it, which was improperly extorted from him, ought not to be permitted to go to the jury; but it is unnecessary to form a definite conclusion on this subject in order to arrive at correct conclusions in this case.
We will now suppose the ease we have suggested modified, and that the prisoner admits to his counsel employed to defend him, that he committed the murder and buried the body of the murdered man under his the prisoner’s house, and the attorney, instead of keeping this a profound secret, tells it and in consequence of his so doing, the body is found buried under the prisoner’s house. It seems to me obvious, that as when this was told by the prisoner, even under threats, the commonwealth could prove on his trial, that the body was found buried under his house. So when it has been told by his attorney, the commonwealth could still prove the same thing. If it could not, the prisoner’s attorney could at his pleasure, deprive the commonwealth of most important evidence. He might tell, where his client had told him the body was buried, when he perceived, that it was on the eve of being discovered, and with a view of preventing so damaging a fact from being proved at the trial against his client.
"While therefore the simple fact, that the body of the murdered man had been found and where it had been found, could ineveiy case be proven and to hold otherwise wouldbe to do gross injustice to the commonwealth. It seems to me very obvious, that no statement of the attorney either before the jury or to other persons, should be ever permitted to be heard to show, that the prisoner had any knowledge of where the body was buried. It may be, that the place where the body was found buried, might be strong evidence of the knowledge of the prisoner of where it was buried, as where it was found under the prisoner’s own house. But it might be, that it was found buried-in a remote place, which in itself would attach no suspicion of the prisoner having any knowledge on the subject. In such case I can conceive of no greater outrage on public policy, than to permit the statements of his counsel, that the prisoner had informed [790]*790him where the body was buried, to get before the jury either directly by permitting him to state, or indirectly by permitting others to testify, that he had so told them.
"Where the prisoner himself has had extorted from him a confession of the crime, and where the body is buried and is found at the place which he indicates, it is true that some courts have permitted not only the fact, that the body was found to be proven, but also the fact, that the prisoner in the confession extorted from him had truly stated where it was buried. Yet when this has been allowed, it has always been on the' assumption, that the only reason why such extorted confession was kept from the jury, was its probable want of truth.
But in this respect, the communications of the prisoner to his counsel stand as is universally admitted, on a very different footing. They are not excluded as extorted confessions are, because of their probable want of truth, and though they were ever so strongly corroborated they would bo excluded. For they are excluded simply on account of public policy; because it is considered, that public interest would be promoted by letting even criminals escape just punishment, rather than to obtain their punishment by destroying the confidence of all clients and prisoners in their counsel, which would be the necessary consequence of permitting under any circumstances, these professional communications from being-disclosed by an attorney. If this be not firmly upheld as the law, gross wrong would be done many a client and many, an innocent prisoner; because they would always be apprehensive, that they could not safely tell the truth to their own counsel, and unless it could be safely told in many instances, no defense could be effectively made though one in fact existed.
My conclusions therefore are, that the commonwealth had a perfect right to introduce before the jury the pistol, with which it claims the murder was committed, and to prove where it was found. Nor can it be justly deprived of this right by the disclosure made 'by the prisoner’s counsel, that from communications with his client ho had obtained possession of the pistol. If this could be done, the prisoner’s counsel could effectually prevent the commonwealth from either [791]*791finding oi’ producing before tlie jury this pistol. Nor could the improper conduct of the landlord of the commonwealth’s attorney, in searching the trunk of the prisoner’s counsel in his absence, or any improper means they may have used to get possession of this pistol, ever deprive the commonwealth of its right to produce it and prove where it was found. But this is the full right of the commonwealth.
IIow it came into the possession of the prisoner’s counsel, the commonwealth ought not to be permitted to show, by either a direct or indirect breach of the confidence between the prisoner and his attorney. The witnesses ought not to be permitted to state to the jury, that this attorney claimed that he had this pistol by and through communications with the prisoner. Nor should they be permitted to state what passed between them and this attorney when they got possession of the pistol, nor at any other time. The simple fact, that the identical pistol produced betore the jury was found in the possession, at a certain time, of the prisoner’s counsel is all that the commonwealth has a right to prove in reference to the finding of this pistol. Nor should the prisoner’s attorney be permitted to testify in any manner in reference to this pistol, as all ho ever knew about it he derived as he states by confidential communications with the prisoner.
The court therefore did not err in the matters complained of in the bills of exceptions number two and number three, except perhaps, sufficient caution may not have been used by it in excluding carefully from the jury, the hearing of all conversations or communications held by the counsel of the prisoner with others in reference to this pistol. . .
The jury ought not to be even informed, that the prisoner’s attorney had any objection to this pistol passing into the hands of these witnesses, and being produced at the trial. Nor did the court err, as we have seen, in the matters complained of in the fourth bill of exceptions. As we have said it is unnecessary for us to decide, whether the court erred in the matters complained of in bills of exceptions number one and number six. It did err in the matters complained of in bill of exception number five.
Bor the reasons stated the judgment of the circuit court rendered'' October 3, 1877, as well as the verdict on which it [792]*792was based must be set aside and annulled, and this cause must be remanded to the circuit court of Grant county, to be proceeded with in accordance with the principles laid down in this opinion and further according to law. But it appearing, that the plaintiff in error is now in the penitentiary in execution of the said judgment against him, it will therefore be necessary to have him brought before this Court by a habeas corpus, and committed to the custody of the sheriff of Ohio county, to be by him convoyed to the jail of the county of Grant for the purpose of being tried for the offense aforesaid. A writ of habeas corpus is accordingly awarded, directed to the superintendent of the penitentiary, commanding him to bring the prisoner before this Court at — o’clock on-day of November, 1882.
The Othee Judges Concurred.
Judgment Reversed.