dissenting. I cannot consent to affirm the conviction in this ease. Every man, under the constitution of our State and nation, is entitled to a fair trial, which these respondents have not had.
The treatment of these men, after arrest and before trial, by the prosecuting attorney and sheriff of Yan Burén county, was an outrage upon justice, for which there can be given no possible excuse, and the results of which, as intended, were used against them, without right, upon the trial of the cause.
It is true that the community were satisfied, generally, of their guilt, and apprehensive that justice might be defeated by some slip or technicality ; but this cannot excuse unfair, unlawful, or treacherous dealing with the accused, who were imprisoned and at the mercy of the law and its executors.
The more aroused and higher the feeling against them, the more necessity that, in the due and orderly administration of justice, the safeguards of the constitution and the laws should not be removed or kept from them, and the more reason why ample opportunity should have been afforded them to employ and receive the advice and assistance of attorneys of their •own choice and seeking.
A more shameful and disgraceful method of depriving men accused of crime of any opportunity of employing counsel and acting under their advice; a more oppressive and deceitful course of conduct to prevent their enjoyment of their constitutional privileges; and a more mean and wicked betrayal and suppression of their rights under the law by these two officials, — I have never read in the history of American *304jurisprudence. It seems like going back into the dark ages-of tlie administration of criminal law, when a person accused of crime was allowed no counsel to act or speak in his behalf, and was subjected to the examination and brow-beating of the prosecutor, assisted often by the judge, without any right or privilege worth naming to protect himself.
It is to be hoped that snch proceedings as are shown by the record in this case are not to be repeated or made a precedent in our State. I, for one, am not disposed to tolerate-such action, even if the consequences of my judgment should go further than the reversal of an otherwise just conviction.
As related by their own oaths, the scheme worked out, by agreement between the prosecuting attorney, sheriff, and one Matt Pinkerton, a detective, was to keep away from the respondents in this case all attorneys, to introduce Pinkerton as a lawyer, get him,employed by them, and then,, as their pretended counsel, worm out a confession from one or both of them, and by a betrayal of their confidence use the confession in evidence to convict them. Acting upon this preconcerted scheme, the prosecuting attorney and sheriff kept a letter written by Marshall G. Barker to Howard & Boos, attorneys at .Kalamazoo, and also refused Mr. Boos-an interview with the respondents when he came to Paw Paw for the purpose of seeing them. They also keep all other counsel from them until a letter from the circuit judge-informs them that the Barkers are entitled, and have the-right, to see attorneys of their own choice.
A detective, passing under the name of Stearns, is sent by Pinkerton from Chicago to meet the prosecuting attorney,, and act under his direction. The prosecuting attorney swears, in substance, that this man Stearns, under his advice- and direction, forged a note, and went to the bank and attempted to pass it. The prosecuting attorney then drafted a complaint, procured some one to verify it, and arrested Stearns for forgery, and placed him in jail where he could have access to the respondents. Another detective, Matt. Pinkerton, then arrives upon the scene, ostensibly as the-attorney employed to defend Stearns, and passing under the *305name of A. S. Trude, a prominent lawyer of Chicago. The sheriff swears that he introduced Pinkerton to the Barkers as an attorney, and as A. S. Trude, from Chicago, in PawPaw for the purpose of defending Stearns against the pretended charge of forgery. And while he detains the letter written by Marshall to Howard & Roos, and prevents the Barkers-seeing or employing counsel, he advises the respondents to-employ Pinkerton, alias A. S. Trude, as their attorney,, which advice they accept and follow.
The detective Pinkerton, personating Trude, becomes their attorney, and thereby secures the faith and confidence-of the accused. He, as their attorney, advises them what story each shall tell in order to get Marshall off with a light sentence and to acquit "William of any offense whatsoever. He gains a confession from each of them, in accordance with his theory, which he writes down. The whole object of this scheme was to obtain such a confession, and then to use-it against them, as admitted by the prosecuting attorney and sheriff. The sheriff very frankly says upon the witness stand that “ Pinkerton was introduced there for the purpose of gaining the confidence of the Barkers by the representations he might make to them, — the object was to get a confession from them.”
That at the time he kept the letter from Marshall to Howard & Roos he did not want Barker “ to have an attorney until Pinkei’ton had got through his part with him.”
When these confessions had been secured, the detective Stearns, who had been allowed the liberties of the jail upon a charge of forgery, was released and disappears. The Barkers are thereupon informed by the bogus Trude that Stearns was discharged in court because he had followed the advice of his attorney, “Trude.” While these respondents were thus confined in jail, denied the assistance or sight of counsel, save this pretender by whom they were being deceived and' betrayed into admissions of guilt, the officials heretofore named employed another party in the jail, who took into his possession notes and letters from Marshall to William, and from Marshall to his wife, and from William *306to Marshall, and handed them, as received, to the wife of the sheriff.
The written confessions obtained by Pinkerton in his character of Attorney Trade were procured for the express purpose of being used as evidence upon the trial, and were offered by the prosecuting attorney after the circumstances of their procuration had been detailed in court. The}*- were very properly ruled out by the court, the circuit judge evincing throughout the whole trial a very manifest disposition to give, as far as it was in his power, these men a fair and impartial trial; yeti cannot but think that he committed a very grave error in admitting the notes and letters in the keeping of the sheriff’s wife, in evidence. It had the effect of partially, at least, carrying out the conspiracy of the detectives and officials against the lives and liberties of the respondents, as well as against the law. These notes and letters were written, many of them, during the time Pinkerton was acting as the pretended but trusted attorney of the Barkers, who were blindly and implicitly following his advice. Others were written after his real character was known to them, and bore evidence upon their face of the great wrong that he had done them in his dual capacity of attorney and detective. Nearly every one of them was tainted with the poison of this vile conspiracy against their rights as citizens, ■unless it be held that the mere fact of arrest for crime shall make a man a felon, and serve as an antidote against any and all wrongs that may be perpetrated upon the accused before trial.
Some of these notes made reference to their supposed lawyer, and what he had advised them to do. Here are two of them : Exhibit A, 11.
“ Bill, the way your woman and mine is swearing, that is the only way to get out clear. Don’t be afraid, for we are innocent; but I want to get clear, and can’t no other way. Now, Bill, don’t wait too long, for he [Pinkerton] says lie can clear you any way, and me too. If you don’t, you will go over the road by the way your woman says. Tell me the reason you don’t say so. Don’t wait, now.
M. G. Barker.”
*307Exhibit A, 18:
“ The lawyer wants my brother to say to help me as a brother, to carry off the body ; and for me to say I did kill him in the house — choked him to death ; and went and got my brother to help as a brother to conceal and get him out of the way; and seeing the woman swears to a lie, we had to do the same to clear us in it. He says not to be afraid, in the least, of nothing.”
This detective, acting as attorney, made these men believe that their wives were testifying against them, or would do so, and that the only way to get out of the matter was for Marshall to confess that he choked Keith to death in the' bedroom, and that William had no part in the killing ; but as a brother, after the deed was done, helped Marshall to conceal the body to cover up the traces of the crime.
The alleged admissions or confessions of William Barker to He Puy, and of Marshall Barker to De Puy, in the presence of the witness Conkle, were made while these men were under the influence, and acting on the advice, of Pinkerton, and should have been excluded.
It also appears that all the notes were written after Pinkerton had gained the confidence of the defendants, and some of them, especially one written by Marshall to William, told the story of the killing as was advised by Pinkerton, and urged William to follow the same story, as the lawyer said it was the only way to get clear. In fact, every admission, written or verbal, introduced against the Barkers, was in corroboration of the theory mapped out by Pinkerton.
These respondents, under his advice and dictation, followed the lines marked out by him in these admissions, and as soon as they found out that he had deceived them, and was not an attorney, but a spy, they denied them. It needs but a glance at the record to show that if it had not been for the work of Pinkerton, there would have been no admissions or confessions by these men. It is not disputed but they were made while Pinkerton was acting as their attorney, and in accordance with the theory which he impressed upon them as their only means of salvation. This was known and shown in court before any of them were admitted. The court left it *308to the jury to determine whether they were voluntary or not. This was a grave and substantial error that I cannot overlook. As a matter of pure law, they were plainly not voluntary, and the court should have so decided. Not only was the hope and promise of favor held out to them, but they were obtained by the grossest fraud and deceit. What any person confides to his attorney, even in a civil cause, is most zealously guarded and kept secret by the law ; but by a trick in this case the confessions made to a pretended attorney, under his advice, are also, in substance, verbally communicated to others in furtherance of the plan devised by him, as he claimed, for their escape, and then allowed to be used against them. Every element of the law cries out against these proceedings, and human nature is outraged at this exhibition of official treachery and duplicity upon the part of the prosecuting attorney and sheriff, who joined and aided in the detective’s plan; and it does not seem to me that the excuse that “ any means justifies the end ” should be supported by the courts in Michigan in this enlightened age.
It is true that some people at once jump to the conclusion that a person is guilty from the fact of his arrest, and that there is always more or less clamor at the “law’s delay;” and those who form these hasty judgments, fret and chafe against the barriers that the law has placed about the life and liberty of those accused of crime. But the maxim that “ every man shall be presumed innocent until he is proven guilty” should be obeyed and followed by those whose duty it is to execute and administer the laws. There can be no excuse for the employment of such means to obtain a conviction as were used here. If the law cannot be enforced, or crime punished, without depriving the accused of counsel, and foisting upon them a detective as an attorney, with the purpose of advising action on their part to betray and convict them, it would be as well, and less expensive, to dispense with courts and juries, and authorize the prosecuting attorney and sheriff at once to pass judgment upon persons arrested, and, if convicted in the minds of these officials or of the community, convey them without further trouble to state *309prison. If men who are supposed to be guilty can be treated in this way, then may an innocent man also be subjected to the same usage. ‘
I also think the court erred in allowing the cross-examination of Pinkerton, and permitting him to state what the Barkers said to him, while he was acting as their attorney, as to where the testicles of Keith could be found. He’was placed upon the stand by counsel for defendants, and asked if he did not show to the Barkers section 9116 of Howell’s Compilation of the Statutes of this State. This was done to show that before Pinkerton obtained the confessions, and in furtherance of his pretended theory for saving them, he pointed out this statute to confirm them in the belief that if William would confess to helping hide the body after death he would escape punishment because of his relationship to Marshall. Pinkerton admitted showing it. This might, perhaps, ordinarily be ground for admitting all that was said and done upon that occasion ; but, in my opinion, in this case it could not open the lips of Pinkerton to disclose the confidential communications of one who supposed he was talking to his coimsel. The mere showing that he took the statutes, and read or pointed out a section of the same, could not break the seal the law has set upon confidential disclosures of a client to an attorney.
Neither do I think the court had a right to set aside a juror, upon his own motion, because he was a few moments late, and had been playing pool. If it was done for either or both of these faults, it was not enough to justify such action. Judges and attorneys, in my experience as a practitioner, have been often as far behind the time of the meeting of the court as this juror was, and I am not disposed, as a moral question, to decide that playing pool disqualifies a man from serving on a jury ; nor do 1 think the law authorizes the trial judge to set up any moral code of this nature, and, by a too rigid idea of a juror’s conduct, deprive a party of a juror with whom he may be satisfied. But as the respondents’ counsel announced themselves content with the jury as *310selected, with challenges still remaining in their hands, it was an error without prejudice in this case.
In all other respects than these above noted, I agree with the opinion filed by Mr. Justice Champlin.