HART, D. J.
(After stating the foregoing facts) — Our inquiry in this case is not whether the defendant be guilty or innocent; the question is whether upon the record before, this court there was such error in the admission of testimony, and duly excepted to, as precluded the defendant from having a fair and impartial trial.
There being a conflict in the testimony as to the competency of the witness, it was for the trial court to determine the question—Harris v. Dougherty (Tex.), 11 S. W. 921, and cases cited; and this court should not reverse except upon being clearly convinced that the court reached a wrong conclusion. Neither should it be overlooked that “the burden is upon the party seeking to suppress the evidence to show that it is within the terms of the statute”'(Weeks, Attys., sec. 147); and that “it must appear that the witness learned the matter in question only as counsel or attorney or solicitor for the party, and not in any other way, and that it was received professionally and in the course of business.” Sharon v. Sharon (Cal.), 22 Pac. 26, and cases there cited at page 39. In the same case it is also said: “The communication must be confidential and so regarded, at least by the client at the time. The presumption is that all .communications between attorney and client in the course of professional employment are confidential,” citing Hager v. Shindler, 29 Cal. 63.
In the case of Chirac v. Reinicker, 11 Wheat. 280, the court says: “The privilege, indeed, is not that of the attorney, but of the client; and it is indispensable for the purpose of private justice. Whatever facts, therefore, are communi-[327]*327eated by client to counsel, ■„ Jely on account of that relation, such counsel are not at liberty, even if they wish, to disclose; and the law holds their testimony incompetent.” ■
In the late case of Bruley v. Garvin (Wis.), 81 N. W. 1038, it is held not to be “absolutely essential that a fee should, be paid or that there should be an actual fetainer;” and that it is sufficient if the attorney’s legal advice was sought for, and he could be considered, for the time being, the legal adviser of the other. Supporting the same rule is Jones on Evi., see. 767, and eases cited.
The protection of the statute applies to conversations with the attorney in negotiating to employ him. It may be necessary to disclose to the attorney many confidential matters connected with the case before it is determined whether a retainer will be given or accepted. Of course a different rule would apply to communications made to the attorney after he had informed the person that no employment would or could be accepted. Nelson v. Becker (Neb.), 48 N. W. 962, cited with approval in Farley v. Peebles (Neb.), 70 N. W. 231.
In Baco v. Frisbie, 80 N. Y. 394, the attorney divided his attentions between the bar of justice and the bar of Bacchus. While presiding at the latter place, a former client, in the presence of several others, but perhaps not in their hearing, submitted a hypothetical proposition to the attorney at the bar. No fee was paid, neither was a suit pending nor contemplated. In a suit afterwards brought between third parties, the court held the saloon conversation privileged, because it appeared from all the facts that it was a confidential communication in the course of professional employment. It is there said: “All communications made by a client to his counsel for the purpose of professional advice or assistance are privileged, whether they relate to a suit pending or contemplated, or to any other matter proper for such advice or aid.” Citing [328]*328Britton v. Lorenz, 45 N. Y. 51; Turquand v. Knight, 2 M. & W. 98. See also, Williams v. Fitch, 18 N. Y. 551; Bank of Utica v. Mersereau, 3 Barb. Ch. 595; Greenl. Ev. (15 Ed.), sec. 240.
The underlying principle of the rule, as stated in the New York case first above cited, is “that he who seeks aid or advice from a lawyer ought to be altogether free from the dread that his secrets will be uncovered, to the end that he may speak freely and fully all that is on his mind.”
In 19 Ves. 267, Lord Eldon expressed the thought that one way of preventing an attorney, who had changed his relations with his client, from testifying against his client “would be by striking him off the roll.” The following quotations in State v. Dawson (Mo.), 1 S. W. 829, from the opinions of Lord Brougham, illustrate the importance and purpose of the rule: “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 interests of justice, which can not be upholden, and to the administration of justice, which can .not go on, without the aid of men skilled in jurisprudence, in the practice of the courts, and in matter affecting rights and obligations which form the subject of all judicial proceedings.” Greenough v. Gaskell, 7 Eng. Ch. 98. “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.” Bolton v. Liverpool, 6 Eng. Ch. 467.
It is evident from an inspection of the record, that the trial court attached much importance to the question of whether there was an absolute contract of employment. The trial court conceded, in fact, that a conditional employment was proved [329]*329and that the appearance for Miss Keeler was upon the employment of the defendant. Undue importance seems to have been attached to the fact that the attorney had not appeared of record for the defendant. Greater weight seems to have been given to the opinion of the attorney that the conversation with him was not in professional confidence than to all the surrounding circumstances showing that such must have been the ease. Upon the entire record, if not alone upon the undisputed facts as testified to by the attorney, it is evident that such relations existed between the attorney and defendant as to make the com-, munication in question privileged. The conclusion upon all the testimony is irresistible that a close confidence existed between the parties and that the defendant made the statement in confidence to a person whom he regarded, and had reason to regard, as his attorney in the case at bar. In support hereof, also see: Denver Tramway Co. v. Owens, 36 Pac. 848; Davis v. Morgan (Mont.), 47 Pac. 793; Moore v. Beay, 10 Pa. St. 519; Benedict v. State (Ohio), 11 N. E. 125; Basye v. State (Neb.), 63 N. W. 811; State v. Perry (Id.), 38 Pac. 655 (dissenting opinion).
Another communication between the same persons at a later time and in reference to a divorce suit against defendant, is also claimed to be privileged. The facts are that Mrs. Snowden, by her attorney, Mr. Rapp, presented to her husband, the defendant, a complaint in divorce accusing him of adultery in October, 1899, with the said Audrey Keeler, and asking a divorce upon that ground. The attorney was called to testify that he presented the complaint to defendant and that defendant signed a document, in substance, that he had received a copy of the said complaint in divorce and knew the contents thereof, and waived service of summons and time in which to answer or otherwise plead, and consented to trial upon the [330]*330complaint without answer or other pleading thereto by the defendant.
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HART, D. J.
(After stating the foregoing facts) — Our inquiry in this case is not whether the defendant be guilty or innocent; the question is whether upon the record before, this court there was such error in the admission of testimony, and duly excepted to, as precluded the defendant from having a fair and impartial trial.
There being a conflict in the testimony as to the competency of the witness, it was for the trial court to determine the question—Harris v. Dougherty (Tex.), 11 S. W. 921, and cases cited; and this court should not reverse except upon being clearly convinced that the court reached a wrong conclusion. Neither should it be overlooked that “the burden is upon the party seeking to suppress the evidence to show that it is within the terms of the statute”'(Weeks, Attys., sec. 147); and that “it must appear that the witness learned the matter in question only as counsel or attorney or solicitor for the party, and not in any other way, and that it was received professionally and in the course of business.” Sharon v. Sharon (Cal.), 22 Pac. 26, and cases there cited at page 39. In the same case it is also said: “The communication must be confidential and so regarded, at least by the client at the time. The presumption is that all .communications between attorney and client in the course of professional employment are confidential,” citing Hager v. Shindler, 29 Cal. 63.
In the case of Chirac v. Reinicker, 11 Wheat. 280, the court says: “The privilege, indeed, is not that of the attorney, but of the client; and it is indispensable for the purpose of private justice. Whatever facts, therefore, are communi-[327]*327eated by client to counsel, ■„ Jely on account of that relation, such counsel are not at liberty, even if they wish, to disclose; and the law holds their testimony incompetent.” ■
In the late case of Bruley v. Garvin (Wis.), 81 N. W. 1038, it is held not to be “absolutely essential that a fee should, be paid or that there should be an actual fetainer;” and that it is sufficient if the attorney’s legal advice was sought for, and he could be considered, for the time being, the legal adviser of the other. Supporting the same rule is Jones on Evi., see. 767, and eases cited.
The protection of the statute applies to conversations with the attorney in negotiating to employ him. It may be necessary to disclose to the attorney many confidential matters connected with the case before it is determined whether a retainer will be given or accepted. Of course a different rule would apply to communications made to the attorney after he had informed the person that no employment would or could be accepted. Nelson v. Becker (Neb.), 48 N. W. 962, cited with approval in Farley v. Peebles (Neb.), 70 N. W. 231.
In Baco v. Frisbie, 80 N. Y. 394, the attorney divided his attentions between the bar of justice and the bar of Bacchus. While presiding at the latter place, a former client, in the presence of several others, but perhaps not in their hearing, submitted a hypothetical proposition to the attorney at the bar. No fee was paid, neither was a suit pending nor contemplated. In a suit afterwards brought between third parties, the court held the saloon conversation privileged, because it appeared from all the facts that it was a confidential communication in the course of professional employment. It is there said: “All communications made by a client to his counsel for the purpose of professional advice or assistance are privileged, whether they relate to a suit pending or contemplated, or to any other matter proper for such advice or aid.” Citing [328]*328Britton v. Lorenz, 45 N. Y. 51; Turquand v. Knight, 2 M. & W. 98. See also, Williams v. Fitch, 18 N. Y. 551; Bank of Utica v. Mersereau, 3 Barb. Ch. 595; Greenl. Ev. (15 Ed.), sec. 240.
The underlying principle of the rule, as stated in the New York case first above cited, is “that he who seeks aid or advice from a lawyer ought to be altogether free from the dread that his secrets will be uncovered, to the end that he may speak freely and fully all that is on his mind.”
In 19 Ves. 267, Lord Eldon expressed the thought that one way of preventing an attorney, who had changed his relations with his client, from testifying against his client “would be by striking him off the roll.” The following quotations in State v. Dawson (Mo.), 1 S. W. 829, from the opinions of Lord Brougham, illustrate the importance and purpose of the rule: “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 interests of justice, which can not be upholden, and to the administration of justice, which can .not go on, without the aid of men skilled in jurisprudence, in the practice of the courts, and in matter affecting rights and obligations which form the subject of all judicial proceedings.” Greenough v. Gaskell, 7 Eng. Ch. 98. “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.” Bolton v. Liverpool, 6 Eng. Ch. 467.
It is evident from an inspection of the record, that the trial court attached much importance to the question of whether there was an absolute contract of employment. The trial court conceded, in fact, that a conditional employment was proved [329]*329and that the appearance for Miss Keeler was upon the employment of the defendant. Undue importance seems to have been attached to the fact that the attorney had not appeared of record for the defendant. Greater weight seems to have been given to the opinion of the attorney that the conversation with him was not in professional confidence than to all the surrounding circumstances showing that such must have been the ease. Upon the entire record, if not alone upon the undisputed facts as testified to by the attorney, it is evident that such relations existed between the attorney and defendant as to make the com-, munication in question privileged. The conclusion upon all the testimony is irresistible that a close confidence existed between the parties and that the defendant made the statement in confidence to a person whom he regarded, and had reason to regard, as his attorney in the case at bar. In support hereof, also see: Denver Tramway Co. v. Owens, 36 Pac. 848; Davis v. Morgan (Mont.), 47 Pac. 793; Moore v. Beay, 10 Pa. St. 519; Benedict v. State (Ohio), 11 N. E. 125; Basye v. State (Neb.), 63 N. W. 811; State v. Perry (Id.), 38 Pac. 655 (dissenting opinion).
Another communication between the same persons at a later time and in reference to a divorce suit against defendant, is also claimed to be privileged. The facts are that Mrs. Snowden, by her attorney, Mr. Rapp, presented to her husband, the defendant, a complaint in divorce accusing him of adultery in October, 1899, with the said Audrey Keeler, and asking a divorce upon that ground. The attorney was called to testify that he presented the complaint to defendant and that defendant signed a document, in substance, that he had received a copy of the said complaint in divorce and knew the contents thereof, and waived service of summons and time in which to answer or otherwise plead, and consented to trial upon the [330]*330complaint without answer or other pleading thereto by the defendant.
Whatever may have been the relations of the attorney and defendant at other times and in reference to other matters, it is evident that as to the divorce case the attorney was representing Mrs. Snowden and not the defendant. So far as the record discloses, there were no confidential relations existing between Rapp and Snowden as to the divorce case. In fact, no such claim is made. They were dealing at arm’s length and the voluntary appearance signed was a public record and doubtless could have been proved by any one acquainted with the defendant’s signature. The relation of attorney and client may exist for one case and not for another. Brigham v. McDowell (Neb.), 27 N. W. 385; Clay v. Tyson (Neb.), 26 N. W. 240; Plano Mfg. Co. v. Frawley (Wis.), 32 N. W. 768; Tucker v. Finch (Wis.), 27 N. W. 817.
There was no error in the admission of the divorce complaint of the wife, and the voluntary appearance and consent to default thereon by the defendant. The complaint was not admitted as original evidence of the truth of the facts therein sworn to, but simply as a necessary incident explaining and characterizing the nature of defendant’s acquiescence or confession. “Admissions and confessions may be implied from the acquiescence of the party in the statements of others made in his presence, when the circumstances are such as afford an opportunity to act or speak, and would naturally call for some action or reply from men similarly situated. 1 Greenl. Ev., secs. 197, 215 ; Joy on Confessions, 77. And it makes no difference that the statements which call for a reply are made by a party who is incompetent to testify.” People v. McCrea, 32 Cal. 100. Supporting the same doctrine, see Com. v. Trefethen (Mass.), 31 N. E. 967; 1 Bish. Cr. Proc., sec. 1254; 3 Am. & Eng. Ency. Law (1 Ed.), 492; Roscoe’s Cr. Ev. (7 Ed.), [331]*331p. 54; People v. Ah Yute, 54 Cal. 89; Kelly v. People, 55 N. Y. 565; Wharton’s Cr. Ev. (8 Ed.), sec. 679.
The prosecution was permitted, over the objection of the defense, to introduce testimony of the association of defendant with Miss Keeler after the date of the offense alleged. The • evidence shows that the defendant walked and drove out with Miss Keeler before and after the birth of her child; that before the child was born defendant rented a room at her home, and at the time of her sickness in childbirth was sent after the doctor. All these acts of association were proper to be shown as bearing upon the defendant’s guilt as charged. This is not in violation of the rule laid down by the majority opinion of this court in the case of the State v. Hilberg, 22 Utah 27, 61 Pac. 215, which denies the right in the State to prove acts of sexual intercourse occurring subsequently to the act charged and relied upon. In the one case a separate and distinct crime is sought to be shown as occurring subsequently to the crime alleged. In the other case, subsequent acts of association not amounting to crime are admitted in evidence as tending to show the probability of the guilt charged. As the child was bom in January, 1900, such proof of association would tend to show defendant’s paternity of the child, an offense which must have been committed prior to the crime charged.
Let the order enter, remanding this case with instructions to the trial court to set aside the verdict and judgment and grant a new trial to the defendant.
Baskin and Ba/rtch, JJ., concur.