42 Pa. Super. 347 | Pa. Super. Ct. | 1910
Opinion by
If sec. 32, art. Ill, of the constitution were merely an act of the legislature, and not a constitutional provision, a question open to discussion would be, whether it supplied a complete protection from all the consequences against which the constitutional prohibition of compulsory self-incrimination was designed to guard, and, therefore, whether the appellant could have been compelled to give the incriminating testimony referred to in his special plea in bar. The question of the sufficiency of a statutory immunity to save the statute from conflict with the constitutional prohibition has been learnedly and elaborately discussed in many cases cited and reviewed in the opinion of the learned judge below and in the briefs of counsel, but it is not the precise question upon which this case turns. No one pretends that sec. 32, art. Ill, is not valid and enforceable, and could not do so without ignoring or denying effect to the decisions in Commonwealth v. Gibbons, 9 Pa. Superior Ct. 527, affirmed on appeal in Kelly’s Contested Election, 200 Pa. 430, and without asserting also that exemption from compulsory self-incrimination is a natural right, or a right secured by the federal constitution, which a state constitution can neither take away nor abridge
It is not necessary to define with exact precision what use of the testimony of the witness is prohibited; it is enough for present purposes to say that it is not impossible that a person who has been compelled to give evidence tending to criminate him may be convicted without any use whatever of that testimony. Nor is it to be implied from what is averred in a special pica in bar that it would be impossible to convict the defendant without the use, directly or indirectly, of the testimony he had given in the prosecutions above referred to. This, as well as the fact that the present prosecution was not under sec. 49 of the penal code, is an answer to the suggestion that that section barred the prosecution.
Upon the question of the effect of the provisions of the federal constitution it is sufficient to refer to Twining v. New Jersey.
We have prolonged the discussion of sec. 32, art. Ill, further than was necessary, for the question is very fully and satisfactorily considered in the able opinion of the learned judge below, and we all concur in his conclusion that that section is restrictive only of the use of the testimony actually given by the witness under compulsion and that it does not confer on the witness an immunity from prosecution for an offense relative to which he has been compelled to testify.
The remaining question relates to the punishment. The defendant was sentenced to pay a fine of $500 and to undergo an imprisonment in the Western Penitentiary for the term of two years. Section 9 of the Act of May 23, 1874, P. L. 230, for a violation of which the defendant was indicted and convicted, declares that any person who shall, directly or indirectly, offer, give or promise any money or thing of value, testimonial, privilege or personal advantage to any member of councils to influence him in the performance of any of his public or official duties, “shall be guilty of bribery and be punished in such manner as that offense is by law punishable.” In common speech, in dictionaries, in statutes and in judicial decisions, bribery is the name given to the offense of the giver
The sentence is reversed and the record is remitted to the court of quarter sessions of Allegheny County with direction that the court proceed and sentence the defendant afresh in due order and according to law, and it is ordered that the defendant forthwith appear in that court for purpose of sentence aS aforesaid.