115 Ark. 387 | Ark. | 1914
(after stating the facts). Section 2286 of Kirby’s Digest provides: “A demurrer is proper * * * Fifth. Where the indictment contains matter which is a legal defense or a bar to the prosecution.”
Here the indictment shows that a charge by the State of Arkansas against Oscar Claborn was pending before the grand jury, “and that the said Oscar Claborn was duly sworn to testify the truth, etc., concerning such charge. ’ ’
Article 2, section 8, of our Constitution provides: “Nor shall any person be compelled in any criminal case to be a witness against himself.”
This language of our Constitution is similar to the language on this subject contained in the Fifth Amendment to the Constitution of the United States. The Supreme Court of the United States, in Counselman v. Hitchcock, 142 U. S. 547-562, said: “This provision must have a broad construction in favor of the right which it was intended to secure. The matter under investigation by the grand jury in this case was a criminal matter, to inquire whether there had been a criminal violation of the interstate commerce act. If Counselman had been guilty of the matter inquired of in the question which he refused to answer, he himself was liable to prosecution under the act. The case before the grand jury was therefore a criminal case. * * The object was to insure that a person should not be compelled, when acting as a witness in any investigation, to give testimony which might tend to show that he himself had committed a crime. ’ ’ The court, after a review of the decisions of State courts construing similar provisions, held (quoting syllabus) that, “It is a reasonable construction of the constitutional provision that the witness is protected from being compelled to disclose the circumstances of his defense or the sources from which or the means by which evidence of its commission or of his connection with it may be obtained.” See State v. Quarles, 13 Ark. 307; United States v. Edgerton, 80 Fed. Rep. 374; United States v. Bell, 81 Fed. Rep. 853.
In the latter case, the following language was used, which we approve, towit: “The right to protection is paramount to any public policy or necessity for punishing false swearing, and, like all other desirable ends in government and all other public policies, this must yield to a constitutional guaranty which protects the citizen against invasion of his privilege. The public policy of protecting him is as much cherished by English and American sentiment as is that which 'insists on the purity of oaths.”
Even after an indictment is found, under our statute -the person charged can not be made a witness in the trial except at his own request. Kirby’s Digest, § 3088. A confession of guilt can not be used in evidence against a. person charged with a crime unless it is first shown that such confession was freely and voluntarily made. See Dewein v. State, 114 Ark. 472. A conf ession of a defendant, unless made in open court, will not warrant a conviction unless accompanied by other proof that the offense was committed. Kirby’s Digest, § 2385.
A procedure compelling one to accuse or convict himself of crime is contrary to the genius of modern criminal jurisprudence and harks 'back somewhat to the spirit and methods 'of the Spanish inquisition. Our Constitution, statutes and decisions show clearly that it is the policy of our laws to protect all persons from criminal proceedings of any character based upon -evidence obtained from the persons themselves, unless such evidence has been freely and voluntarily given.
An indictment for perjury based upon alleged false -swearing in a criminal proceeding pending before the grand jury against the pers-om himself giving the alleged false testimony, is fatally -defective unless it -alleges that the accused voluntarily appeared before the grand jury to give the testimony upon which the indictment for perjury is predicated. No such allegations are contained in the indictment under review, and it therefore fails to charge a public offense.
For the error of the court in overruling the demurrer the judgment will be reversed and the clause remanded, with directions to sustain the same.
