The plaintiff in error was charged with rape, found guilty, moved for a new trial which was refused, and he excepted. The grounds upon which his counsel relied before this court were:
1. That the verdict was contrary to law, and contrary to evidence.
2. Because the court erred in not allowing counsel for defendant to ask Mary Bell, if she did not tell A. S. Clay, Esq., on the fourteenth day of May, 1879, that the man who committed the rape upon her was a tall, large negro, with high cheek bones.
3. Because the solicitor-general was allowed in his concluding argument to say to the jury that the defendant was a negro, and the prosecutrix a white woman, and that they ought to put a stop to miscegenation as there was no telling where it would stop if it were not cut off, the jury being all white men.
1. The testimony of Mary Bell, the alleged victim of this crime, was positive both as to the identity of the person, and the commission of the act. It is true that it was shown that she was a lewd woman of the most abandoned character, and that from that character she was not to be believed upon her oath. She was however corroborated in much of her testimony by other witnesses who were not impeached.
Rebecca Burton testified as to the identity of the accused, and also as to his guilt. James Burton testified to *527the presence of defendant in Mary Bell’s room, and that he saw him jerk her down upon the bed after he had failed to find Leana Burton, another of these unfortunate girls, for whom it appears he had been vainly in search. No effort was made to impeach this lad, and no witness was brought to prove that Rebecca Burton was unworthy of belief, the only attempt to discredit her being upon a matter not touching the corpus delicti, and in which it does not appear that the defendant succeeded.
To sum up on this point, it appears that the jury, who must be the judges of the fact, when the case is properly sent down to them, as to whether a rape has been committed or not, believed that it had, and the judge, upon a review of the evidence and the verdict, declined to interfere with their finding.
2. Was the court right in excluding a statement said to have been made by the prosecutrix to A. S. Clay, Esq., who was of counsel for her at the trial, but who was not at the time when the same was made ?
The law recognizes and protects the confidential relations existing between attorney and client, and we would not abridge in the remotest manner these relations. In this case the record shows that although the attorney was not actually employed at the time of the conversation, yet that the same was had in anticipation of employing him and we think it comes fully within the letter, the reason and spirit of the law. Whilst we thus hold, it is proper further to declare, that if the witness in his testimony shall disclose anything in such confidential communications material to his side of the cause, then the other party would have the right to all that was said in the same conversation, although it was said to the attorney, and may injuriously affect his case. If the additional testimony should be such as to criminate the witness, and he declines to answer it, then the whole conversation should be excluded from the consideration of the jury.
In this examination no part of the testimony sought *528had been given or brought out by the state, and thei-efore it does not fall within the rule here laid down. The court committed no error in rejecting the statement.
3. It is undoubtedly the duty of the judge, as far as possible, to restrain counsel whenever they travel out of the law and testimony involved in the case, and to confine them to the issues made by the proof and the pleadings. But when the judge is preparing his instructions for the jury in writing, or contemplating the principles of law to be given, his mind cannot be directed to every utterance made by counsel in the argument, and if the opposing counsel fear to interrupt, lest the retort may injure his client, he can always, by a written 1 equest to charge, correct errors of law or absurdity of position when the retort would be impossible.
For counsel to sit silently by, saying nothing, asking no correction in the charge, and never bringing his complaint to the attention of the judge, until it appears among the grounds for a new trial, would be to lie in ambush both for him and the opposite party, and this the law does not encourage.
Judgment affirmed.