(dissenting). A grand jury had been summoned by the circuit court of Ingham county, Judge Person presiding. One of the subjécts under investigation by the grand jury was an attempt to bribe legistators to secure the passage of a certain bill then pending before the legislature. The respondent was the agent of and represented a corporation in the attempt to secure the passage of this bill. Undoubtedly the respondent believed that he was summoned as a witness before the grand jury to testify in regard to this transaction. Before going before the grand jury he went to the presiding judge, and made a voluntary confession of his crime. He knew that the presiding judge could not act as his attorney or counsel, any more than could the prosecúting attorney. To hold that he believed that the judge could so act would be a reflection upon the respondent’s common sense and intelligence. He was a man of age and experience, and the trusted agent of a large corporation. I do not think that it can be said, under this record, that he approached the presiding judge and made his confession with any idea that he stood to him in that confession in the relation of client and attorney. The confession was made not only without any threats or promises, or even inducements, but after the presiding judge had told him that he could not advise him; thus practically saying to him: “You know that the relation between us is not that of client and attorney, and cannot be, and that whatever you say to me is not privileged, under the law.” Every one knows that a presiding judge cannot advise litigants, for it would disqualify him from sitting in the case. It is immaterial what the motive of respondent was in making this confes*133sion, — whether he did it from sting of conscience, or from repentance for his error, or a desire to escape sentence, or in order to obtain a lighter one. The confession was not made as an informer, for the purpose of causing an investigation into the crime of others. It was no less a confession, pure and simple, because it involved other participants in the crime. As against such participants, the confession would not be competent evidence, at least- until a conspiracy had been established by other evidence. Confessions are potent evidence of guilt when made voluntarily, without threats, promises, or duress. See Daniels v. State, 6 Am. St. Rep. (78 Ga. 98) 238, and note.
It will be conceded that there is no statute of this State covering the case. The only statutory privileged communications are where a confession is made to a priest “in the course of discipline enjoined by the rules or practice of such denomination ” to which such priest belongs (3 Comp. Laws, § 10180), and information acquired by a physician in attending a patient in his professional character, which information must be necessary to enable him to prescribe (3 Comp. Laws, § 10181). Under these statutes, confessions of crime made to a physician, not necessary for the physician’s prescription, or to a priest, not in accordance with the discipline of his church, would be competent. At the common law, communications to clergymen and physicians were not privileged. 1 Greenl. Ev. (16th Ed.) § 247a. The question of communications by a layman to his priest arose in the English courts, and the court said:
“It is not to be supposed for a single moment that a clergyman had any right to withhold information from a court of law. It is a principle of our jurisprudence that justice should prevail, and no unrecognized privilege can be allowed to stand in the way of it.” Normanshaw v. Normanshaw, 69 L. T. Rep. (N. S.) 468.
The common law throws the mantle of secrecy over two classes of communications, viz., between lawyer and client, and between government officials and informers. "What is the basis of this rule of "the common law ? Such com*134munications are not excluded for the protection of criminals, but solely on the ground of public policy. Many efforts have been made before the courts to ascertain who informed government officials of frauds and crimes against the government, but the testimony has been universally excluded, not for the purpose of protecting the informer against prosecutions, but solely because public policy requires that this information, so essential to protect the government from frauds and crimes, should' not be made public; otherwise the government would suffer, for it is evident that but few, if any, would give such information if they knew that it could be made the basis of a libel suit, or could be used against them in other ways. See Worthington v. Scribner, 109 Mass. 487 (12 Am. Rep. 736); Rex v. Akers, 6 Esp. 125; Attorney General v. Briant, 15 Mees. & W. 169; Robinson v. May, 2 Smith, J. P. Eng. 3; Beatson v. Skene, 5 Hurl. & N. 838. In Shinglemeyer v. Wright, 124 Mich. 230 (82 N. W. 887, 50 L. R. A. 129), we said:
“The defendant did not make these statements for repetition. He made them for the exclusive use and benefit-of the trusted and sworn officers of the law. They should have been forever locked in their breasts, and never disclosed ; otherwise, few persons would dare to disclose to an officer the name of a suspect, or anything they had learned about his character.”
This rule also covers communications made to those in authority, relative to the character and conduct of a party applying for a public office. Earl v. Vass, 8 Scotch App. Cas. 229; Garn v. Lockard, 108 Mich. 196 (65 N. W. 764); Pollasky v. Minchener, 81 Mich. 280 (46 N. W. 5, 9 L. R. A. 102, 21 Am. St. Rep. 516); Bacon v. Railroad Co., 66 Mich. 166 (33 N. W. 181); Wieman v. Mabee, 45 Mich. 484 (8 N. W. 71, 40 Am. Rep. 477).
This case is not within the principle of those above cited. Evidence of these communications is rejected “upon the-ground of public policy, because greater mischiefs would probably result from requiring or permitting its admission. *135than from any refusal to receive it.” 23 Am. & Eng. Enc. Law (2d Ed.), 50.
The rejection of this testimony is sought upon the basis of the existence -of the relation of attorney and client. The authorities hold that “it is absolutely essential, in order to make the communication privileged, that the relation of attorney and client should have existed,” and that ‘ ‘ the communication must be made solely on account of the relation of attorney and client, and for the purpose of obtaining professional assistance or advice,” etc. 23 Am. & Eng. Enc. Law (2d Ed.), 58, 62, and authorities there cited: Bramwell v. Lucas, 4 Dowl. & R. 367. If that relation existed, the evidence is inadmissible; otherwise it is admissible. There is no privilege for a confidential communication, merely as such. 1 Greenl. Ev. (16th Ed.) § 248. It is not a question of sentiment, but of law. The language of Lord Camden, quoted in Greenleaf on Evidence, is appropriate here:
“ It is not befitting the dignity of this high court of justice to be debating the etiquette of honor at the same time when we are trying lives and liberties. ” 1 Greenl. Ev; § 248.
There must be found some well-recognized rule of the common law, founded upon common sense and justice, which justifies the exclusion of a voluntary confession of crime. Public policy protects communications between lawyer and client from the eyes of the public, because they are regarded as essential to enable the lawyer to make a proper defense for him. It does not protect confessions or communications where that relation does not exist, no matter how close any other relation between the parties to it may be, or what the purpose may be in making the confession. No sacredness attaches to the confession of a criminal, and, when he seeks protection from its consequences, he must show his privilege to be within some well-recognized rule of law. I do not believe in extending the rule for his protection, but, rather, in restricting it for the protection of the public. Chief Justice Shaw said that the *136communication, to be privileged, must be “with a view to obtain his advice and opinion in matters of law, in relation to his legal rights, duties, and obligations, whether with a view to the prosecution or defense of a suit, or other lawful object. * * *
“This principle we take to be this: That so numerous and complex are the laws by which the rights and duties of citizens are governed, so important is it that they should be permitted to avail themselves of the superior skill and learning of those who are sanctioned by the law as its ministers and expounders, both in ascertaining their rights in the country, and maintaining them most safely in courts, without publishing those facts which they have a right to keep secret, but which must be disclosed to a legal adviser and advocate to enable him successfully to perform the duties of his office, that the law has considered it the wisest policy to encourage and sanction this confidence, by requiring that on such facts the mouth of the attorney shall be forever sealed. To the rule as thus stated we are still inclined to adhere.
“But the privilege of exemption from testifying to facts actually known to the witness is in contravention to the general rules of law. It is therefore to be watched with some strictness, and is not to be extended beyond the limits of that principle of policy upon which it is allowed. It is extended to no other person than an advocate or legal adviser, and those persons whose intervention is strictly necessary to enable the client and attorney to communicate with each other, as an interpreter, argent, or attorney's cleric. .And this privilege is confined to counsel, solicitors, and attorneys, when applied to as such, and lohen acting in that capacity. Wilson v. Rastall, 4 T. R. 753. * * * And so strictly is the rule held that the privilege extends only to communications made by the client to his attorney for the purpose of obtaining legal advice, that in a late case it was held that a communication made by a client to his attorney, not for the purpose of asking his legal advice, but to obtain information as to a matter of fact, is not privileged, and may be disclosed by the attorney if called as a witness in a cause. Bramwell v. Lucas, 2 Barn. & Cress. 745.” Hatton v. Robinson, 14 Pick. 416 (25 Am. Dec. 415).
As applied to this case, the relation of client and attor*137ney is the only basis upon which the confession can be held privileged. How can this relation be held to exist in the face of the fact that the respondent knew he was not talking to Judge Person as his lawyer? and most certainly did he know this, when the judge promptly told him that he could not advise him. Not only did the judge plainly tell him this once, but also told him he had better see an attorney; and after respondent said he had seen an attorney, but got no advice from him, etc., the judge again said, emphatically, “I cannot give you any advice as to what you ought to do for your personal benefitand after 'all this the respondent told his story of the crime. I cannot yield my assent to the existence of a relation between this respondent and Judge Person which neither, in my judgment, believed to exist.
I have carefully examined the authorities to find under what circumstances judges are privileged from testifying as to matters which take place before them, and the only privilege I find accorded to them is that, on grounds of public policy, they cannot be called on to state what occurred before them in court. 1 Greenl. Ev. (16th Ed.) § 254c. I find one case which is somewhat in point. State v. Chambers, 45 La. Ann. 36 (11 South. 944). That case, in its facts, is almost the counterpart of this, except that in that case the judge sought the respondent, while in this the respondent sought the judge. The respondent was charged with the crime of murder. The district judge, before whom he was first tried, visited the respondent in prison, and communicated with him. Upon the second trial, presided over by the judge’s successor, he (the judge) was placed upon the stand as a witness. The objection was made, not that the communication was privileged, but that the presence of the-judge in his official capacity in the prison intimidated the respondent, so that his answers were not free and voluntary. The court, in disposing of the case, said:
“We find no legal and valid'reason to set aside the ver*138diet on this account. His testimony shows that he warned and cautioned the defendant, and that he conversed freely and voluntarily.”
What difference, in principle, does it make whether the-judge sought the respondent to obtain, if he could, a confession, or whether the respondent sought the judge to voluntarily make a confession ? The only difference-between the two cases is that in this case the respondent made the communication after twice being told by the judge that he could give him no advice, while in the other case the respondent made the communication without asking any advice.
The fact that a grand jury was believed to be investigating this crime is of no significance. The same rule would apply if there had been no grand jury, and no suspicion of the crime or of the respondent’s guilt. Suppose á case of murder or burglary, and the criminal, for any reason whatever, seeks the presiding judge within whose jurisdiction the crime was committed, and confesses the crime, after being told that he can give him no advice; is the judge’s mouth sealed ? Should it be sealed ? Must a heinous crime go unpunished, under the protection of privileged communications, where no relation of lawyer and client existed or could exist? Would not the judge, under such circumstances, be required, by all considerations of public policy, to disclose the confession ?
I do not think there is any error upon the record, and the conviction should be affirmed.
Hooker, C. J., concurred with Grant, J.