peach him. Munshower v. State, 55 Md. 21, 39 Am. Rep. 414."

pleaded guilty, and turned state's evidence in may be given in evidence to discredit or imthe hope and expectation of a light sentence, and in this he was not disappointed. According to his own testimony, he was induced to become a witness for the state by a statement made to him by the state's attorney. He testified: "As a result of my having plead guilty and turning state's evidence, I get from the state a request or beg the court to give my liberty in order to take care of my family and provide for my family. I was forced to declare myself guilty because I knew all about it. I do not know how much the state's officers will endeavor to reduce my sentence for having plead guilty to the eighth count. I do not know anything. The court knows when the prosecuting attorney will ask the court. Whatever they will give me I do not know anything about it. All the state's attorney told me is this: "That if you will tell us what you know-we don't want any lies from you-but, if you tell us what you know, we will ask the court to sentence you to 18 months.' I pleaded guilty before the state's attorney spoke to me about these things. Before he ever told me anything about it I pleaded guilty. The state's attorney promised me if I plead guilty that he would ask the court to give me 18 months. He didn't tell me he would give me 18 months, but he would ask the court to give me 18 months." He testified to facts which, if believed by the jury, not only connected Lanasa with the crime, but which showed that he was the head and front of the whole conspiracy-the originator and master spirit of the whole nefarious business. After Lanasa's conviction, the state confessed a plea of not guilty against Tamburo, who also had testified to certain things, which will be presently alluded to, which tended to show Lanasa's participation in the crime. The appellant testified in his own behalf, asserting his innocence, and denying all the acts imputed to him by the state. It is therefore perfectly obvious that the result of the trial resolved itself into the question of the credibility of Lupo and Tamburo. The question of the appellant's liberty seems to have depended upon his ability to break down the evidence of these two men by convincing the jury that they were attempting, for selfish purposes, by false and perjured testimony, to secure his conviction of a crime of which he was entirely innocent. In this situation it was vitally important to the appellant that all testimony legally admissible to weaken the force and affect the credibility of these witnesses should have been submitted to the jury. He had a right to show that they had made to others contradictory statements as to the material facts testified to by them at the trial. This was the object of the proffered evidence embraced in the sixteenth and twenty-fifth exceptions. "When a witness has testified to any matter of fact material to the issue about which he has made a different statement to

The sixteenth exception was taken during the cross-examination of Lupo, who had pleaded guilty to the eighth count of the indictment which charged an executed conspiracy; the overt act charged in that count being the explosion of dynamite which had been placed under and near the property and dwelling house of Di Giorgio, his plea of guilty to that count having been entered under the circumstances stated above. He testified fully to Lanasa's participation in the crime, had told of certain meetings of himself, Lanasa, and Rei in Pittsburg, and of the circumstances under which he had come to Baltimore and the object of his visit, but claimed that he was not present when the dynamite was exploded. He testified that Lanasa said in Pittsburg to Rei "that a bomb ought to be throwed into the house of Mr. Di Giorgio, of Mr. Joseph Di Giorgio"; that Lanasa said to witness "come to Baltimore, as I want to put a bomb in the house of Di Giorgio"; that Lanasa gave him $10 to come to Baltimore "to put the bomb into the house of Mr. Di Giorgio"; that he told Lanasa that he was not good for that kind of business, and that Lanasa said he had two other men; that "he would give me two other men to do the business." He further testified that he reached Baltimore on the 11th of December at 4 o'clock in the morning, and went to a hotel and remained there until about 9 o'clock a. m. of that day; that he afterwards saw Lanasa, and told him that Rei was dead, and that the traverser said "my best friend was killed in Pittsburg, and I have sent two men to rob the house of Joseph Di Giorgio." "I did not say, 'rob the house.' The interpreter misunderstood me. He told me: 'My best friend, Philipi Rei, was killed in Pittsburg, and I have sent two men to blow up the house of Di Giorgio."" He further testified that he went that day to the house of Lanasa, who took him upstairs, and that Lanasa there, in the presence of two people, repeated again, "my best friend was killed in Pittsburg, Philipi Rei, and I have taken two young fellows and sent them to blow up the house of Joseph Di Giorgio"; that he came here for the purpose of blowing up the house, and learned after he reached here from Lanasa that the house had been blown up. Lupo on the 10th of January, 1908, in Cleveland, Ohio, had made a written statement of his participation in the crime in the presence of Capt. A. J. Pumphrey and two other of ficers. In this statement, which is called in the record a confession, he stated: That he heard Lanasa say to Rei: "I wish you would come to Baltimore to-morrow. I want to blow up Di Giorgio's house, and kill him." That in the upstairs room of Lanasa's house in Baltimore, Russo said, "They have killed Rei. Now we will blow up Di Giorgio's

Tony Lanasa also said this same remark as treated by this court. The result of the Russo did." That Lanasa said he had sent authorities is that, to make the communicatwo men to blow up the house. In order to tions privileged, they must be made during lay the foundation to discredit and impeach the existence of the actual relation of attorthis witness by showing that he had made ney and client, or during interviews and certain statements tending to exculpate Lan- negotiations looking to the establishment of asa from all connection with the crime of such a relationship between the parties, and which he was accused, counsel for Lanasa❘ must relate to professional advice and to the asked the witness the following question: subject-matter about which such advice is "Did you not at the city jail on Thursday, sought. When such conditions exist, the March 26, 1908, about 8 o'clock a. m., say to law will not permit the counsel to divulge Mr. George Penniman and Mr. Harry Wolf the communications without the consent of that you were not guilty of the charge the client. In Chase's Case, 1 Bland, 222, against you?" This question was objected to 17 Am. Dec. 277, the chancellor said: "The by the state, and the court ruled that, before policy of the law does not permit a solicitor the question should be permitted to be pro- to divulge the secrets of his client. Such pounded to the witness, the nature of the confidential communications are not to be relationship existing or attempted to be creat- revealed at any period of time either beed by Messrs. Penniman and Wolf on the oc- fore or after the suit has been brought to casion of that visit should be more clearly an end or in any other case; for, as to all established. Mr. Penniman was then called such matters, his mouth is shut forever." and testified as to the object of his visit to The same principle is announced in Chew v. Lupo in the city jail, and give the circum- Farmers' Bank, 2 Md. Ch. 240; Fulton v. stances under which certain statements were MacCracken, 18 Md. 543, 81 Am. Dec. 620. made to him by Lupo. At the conclusion of In Chew's Case, supra, the chancellor said: Mr. Penniman's evidence, the counsel for Lan- "But, although the rule is thus inflexible in asa propounded to the witness the following the cases to which it applies, there are what questions: "Did you at the city jail on Thurs- are sometimes called exceptions to it, alday, March 26, 1908, at about 8:30 a. m., say though these exceptions are rather apparent to Mr. George Dobbins Penniman and Mr. than real, and will, I think, be found upon Harry Wolf that you were not guilty of the examination to be entirely without the princharge against you; that your attorneys ciple upon which the rule rests. That is, wanted you to plead guilty, but that they they will be found not to be communications could not fool you, and that you were not from the client to the legal adviser at all, going to do anything like that; that they but information which the latter had acquirwere trying to take your life; that the con- ed independently of any such communicafessions were not true; that, after you had tion. And, when that is the case, the intertalked with Dimarco for an hour and a half, ests of justice, so far from requiring that he went out with his tail between his legs; it shall be locked up in the breast of the atthat all in the papers about pleading guilty torney, demand its publicity when necessary was not true, as no one could talk for you; to guard or to assert the rights of the third that, after they took you to court, you would persons." The record shows that Mr. Pennicry out in court 'that Mr. Dimarco was not man, who was counsel for Lanasa, had heard my lawyer, but I want Mr. Wolf'-that sub- that Lupo was being subjected in the jail to sequently, at the end of the conversation, some improper treatment. The evidence does you asked Mr. Penniman and Mr. Wolf to not show the exact information conveyed to meet you at the jail at 8:30 a. m., Saturday him; but it caused him to think that some March 28th, when you would employ them improper influence was being used upon the as your counsel, and give them your defense, | prisoner-"that something was being done and that you wanted to stand trial?" Upon which should not be done"-and he wanted objection by the state the court refused to to get at the bottom of it and see what the permit the witness to answer. The record trouble was, that he did not go there as states "to which offer as so made the state counsel for Lupo, and had no thought of such objected, and the court sustained the objec-employment, and it was not pretended by tion, and refused to permit the defendant to prove said offer." The trial court treated the statements made by Lupo to Mr. Penniman as confidential communications between attorney and client. We cannot so consider them. We have been referred to no case, and we have been unable to discover one, in which statements made under the circumstances disclosed by the record have been held to be privileged, and it would be an undue extension of the doctrine to hold it applicable to this case.

The subject of confidential communications

Lupo that he regarded Mr. Penniman as his counsel or legal adviser at any time, and as a matter of fact he was never so employed. During the interview which took place under these circumstances, Lupo, it is said, made the statement referred to in the questions embraced in this exception, and Mr. Penniman testified that at the time they were made the relation of lawyer and client did not exist, nor was such a relationship mentioned in any way, nor had it occurred to him. This is undisputed. But “after everything was said," to use the language of Mr.

was broached, and an arrangement was made nized in the courts of England, or of other that he should return on the following Satur- states in this country, and it should not be day, when Lupo "would give us his defense." extended, but applied strictly." Maitland v. He did go to the jail on Saturday, but Lupo Bank, 40 Md. 559, 17 Am. Rep. 620. In all declined to see him, and never did give him the cases in this court in which such evihis defense so far as the record shows. We dence has been admitted, it appears that think it clear that the facts do not bring the corroborating statement was made imthese statements within the rule as to mediately, or soon after the transaction. confidential communications. The witness Cooke v. Curtis, 6 Har. & J. 93; Washington should have been required to answer, and, if | Fire Insurance Company v. Davison, 30 Md. he had denied the statement attributed to 105; McAleer v. Horsey, 35 Md. 464; Maithim, Mr. Penniman should have been permit-land v. Citizens' Bank, 40 Md. 559, 17 Am. ted to contradict him, if he could do so, as such evidence would have had a direct tendency to discredit the witness upon a most material point in the case, viz., the connection of Lanasa with the conspiracy. For precisely the same reason, there was reversible error in the ruling on the question embraced in the twenty-fifth exception. Joseph Tamburo, one of the defendants, had testified to certain facts tending to show the guilt of the appellant. Among other things he swore that he was present in the upper room of Lanasa's house on the occasion testified to by Lupo, and heard the appellant say that he had sent two men to blow up the house of Di Giorgio. The defense proposed to contradict him upon this point by two witnesses by showing that Tamburo had stated that he was not present at Lanasa's home on the occasion testified to by him and Lupo, and that he knew nothing about the trouble. Such testimony was clearly admissible, and its exclusion was well calculated to do the appellant injury.

Rep. 620; Bloomer v. State, 48 Md. 537; Mallonee v. Duff, 72 Md. 286, 19 Atl. 708. In the case of the City Passenger Railway Company v. Knee, 83 Md. 78, 34 Atl. 252, we said: "Ever since the case of King v. Parker, 3 Doug. 242, it is well settled, according to the weight of authority, that 'what a witness says not upon oath, will not be admitted to confirm what he said upon oath.' Robb v. Hackley, 23 Wend. (N. Y.) 55; Conrad v. Griffey, 11 How. 490, 13 L. Ed. 779. But, though this is the general rule, the textwriters agree that most courts have held that there 'may be many cases where, under special circumstances, it possibly might be admissible, as for instance in contradiction of evidence tending to show that the account was a fabrication of a late date, and where consequently it becomes material to show that the same account had been given before its ultimate effect and operation arising from a change of circumstances could have been foreseen.' 2 Starkie on Ev. Mar. p. 187; 1 Wharton on Ev. § 570; Rapalje's Law of Witnesses, § 224; Taylor's Ev. § 1330. This exception to the general rule seems to rest upon the theory that the witness having been

testified under corrupt motives, or has fabricated his testimony to meet the exigencies of the case, the fact that he uttered the same statement shortly after the transaction, and before the motive to fabricate existed tends to support not only his integrity, but also the accuracy of his recollection. To bring the case within the exception, it must appear that the conversation occurred soon after the transaction, is consistent with the statements made on oath, and contains such fact or facts pertinent to the issues involved, as reasonably to furnish to the jury some test of the witness' integrity and accuracy of recollection. And this is the rule that obtains in Maryland." The appellant was accused of a crime of great atrocity; but he was entitled to all the presumptions and to all the safeguards which the law has provided for the protection of the personal liberty of the citizen. He was presumed to

The thirtieth to the thirty-sixth exceptions, Inclusive, present substantially the same questions. The testimony of Joseph Tamburo had been contradicted, and for the purpose | impeached by evidence showing that he has of supporting his credibility he was recalled by the state in rebuttal. Thirty-nine days after the commission of the crime, and while he was in the custody of the police department of Baltimore city, he made to F. P. Di Maio, the superintendent of Pinkerton's National Detective Agency, in the presence of three members of the Baltimore city detective department, a statement which was reduced to writing and sworn to by him before a notary public. This statement, over the objection of the traverser, was admitted in evidence in corroboration of Tamburo's testimony in chief. If it be conceded that the statement is not excluded by section 3, art. 35, Code Pub. Gen. Laws 1904, we are of opinion that such a statement by one jointly indicted with the appellant for the identical crime for which he was being tried, made so long after the commission of the offense and under the circumstances disclosed by the record, does not fall within the ex-be innocent, and this presumption was an abception to the general rule "which excludes mere hearsay evidence because ex parte and without the sanction of an oath." The rule which admits such testimony in corroboration of the evidence of an impeached witness

solute protection against conviction and punishment until it was overcome by proof which placed his guilt beyond any reasonable doubt. This presumption attended him throughout all the proceedings against him

a fair and impartial trial. He had a right | 6. EVIDENCE (8 536*)-EXPERT WITNESSESto be judged by the law of the land; and COMPETENCY. where it appears, as it does by this record, that he has been denied the benefit of substantial rights during the progress of the trial, it is the duty of this court to reverse the judgment and award a new trial. Judgment reversed, and new trial awarded.

warehouseman, who seeks to establish a fact
which avoids the effect of plaintiff's evidence,
the burden of the evidence shifts and rests on
the warehouseman to show the latter fact, and,
where the evidence proving such fact is adduced,
the onus is cast again on plaintiff to show that,
notwithstanding such fact, the warehouseman
is responsible.
[Ed. Note. For other cases, see Warehouse-
men, Cent. Dig. §§ 76, 77; Dec. Dig. § 34.*]
14. WAREHOUSEMEN (8 34*) INJURIES TO
GOODS-NEGLIGENCE-QUESTION FOR JURY.
Where, in an action against a cold-storage
warehouseman for injuries to goods placed in
storage, defendant sought to avoid responsibility
by proving the bursting of a city water main and
the flooding of the cellar in consequence, and
that such occurrence had not happened before
for at least 16 years, the question whether de-
fendant could by the exercise of ordinary fore-
sight have averted the injury was for the jury.
[Ed. Note. For other cases, see Warehouse-
men, Cent. Dig. § 84; Dec. Dig. § 34.*]

15. NEGLIGENCE (§ 121*)-BURDEN OF PROOF-
EVIDENCE OF ADVERSE PARTY.

In an action based on negligence, plaintiff is not confined to his own testimony to prove his case, but is entitled to the benefit of all facts brought out by the evidence offered by either party.

[Ed. Note. For other cases, see Negligence, Cent. Dig. § 224; Dec. Dig. § 121.*]

in good and marketable condition and properly prepared and packed for cold storage when it was delivered by the plaintiff to the defendant during the months of July and August, 1904 (if the jury find such delivery), and that the same poultry was in a decayed and damaged condition when it was withdrawn by the paintiff from the defendant's warehouse during the months of January and February, 1905 (if the jury find it was so withdrawn), and that there is nothing in the nature of poultry such as the plaintiff's to cause it to become decayed and damaged from being left in cold storage for the time the plaintiff's poultry was, and if the jury further find that during the interval between the delivery of said poultry to the defendant's warehouse and its withdrawal therefrom said poultry was in the exclusive possession of the defendant, then the law presumes that the damage to said poultry was caused by the negligence of the defendant, and the verdict of the jury will be for the plaintiff, unless the defendant shows to the satisfaction of the jury that its negligence (if the jury find that it was negligent) did not cause the damage to said

Appeal from Baltimore City Court; Alfred poultry. S. Niles, Judge.

Action by Thomas Kreiner against the Baltimore Refrigerating & Heating Company of Baltimore City. From a judgment for plaintiff, defendant appeals. Reversed, and new trial awarded.

"(3) The plaintiff prays the court to instruct the jury that, even though they find that the cellar of the cold-storage warehouse of the Baltimore Refrigerating & Heating Company was without any carelessness or negligence on the part of said company

The following prayers were asked by flooded on December 28, 1904, by the burstplaintiff and given by the court:

ing of a city water main one square and a half away from said cellar, and that the damage to the plaintiff's poultry (if the jury find that it was damaged) was caused by such flooding of the cellar, the plaintiff is still entitled to recover in this case, provided the jury further find that the said cellar was not a reasonably proper and safe place for the cold storage of the plaintiff's poultry; that is to say, that an ordinarily prudent business man in the same business and un

stored similar poultry in said cellar.

"(1) The plaintiff prays the court to instruct the jury that if they find that the squabs, ducks, and chickens mentioned in the evidence were in good and marketable condition and properly prepared and packed for cold storage when they were deposited by the plaintiff and accepted by the defendant for cold storage during the months of July and August, 1904 (if the jury find such deposit and acceptance), and that the same squabs, ducks, and chickens were in a dam-der the same circumstances would not have aged condition when they were delivered by the defendant to the plaintiff during the months of January and February, 1905 (if the jury find they were so delivered), and if they further find that the damaged condition of said poultry was due to the negligence of the defendant-that is, to the failure of the defendant, or its agents or employés, to exercise that degree of care and skill or to employ those means and facilities which ordinarily prudent business men in the same business and under the same circumstances would have exercised and employed in the storage and preservation of like goods so deposited-then their verdict will be for the plaintiff.

"(2) The plaintiff prays the court to instruct the jury that if the jury believe that the poultry mentioned in the evidence was

"(4) The plaintiff prays the court to instruct the jury that although they may find that the cellar of the defendant company's cold-storage warehouse was without any negligence or carelessness on the part of said company flooded on December 28, 1904, by the bursting of a city water main one square and a half away from said cellar, and although they find that the damage to the plaintiff's poultry (if the jury find that it was damaged) was caused by such flooding, still if the jury further find that ordinarily prudent business men in the same business and under the same circumstances, in case they had stored similar goods in said cellar, would have provided and kept in working order some outlet or drainage from said cellar, and that the defendant did not