48 A.2d 10 | Pa. Super. Ct. | 1946
Argued April 8, 1946. The defendant, Joseph Frank, was indicted, charged with the operation of a lottery. The only witnesses called by the commonwealth to prove the alleged criminal offense were James Lee Hill and Martin Wellman. The commonwealth admitted that Hill was under indictment and in its side-bar offer stated that it expected to be able to prove that these two men and defendant were associated together in the operation of a lottery. Both witnesses refused to testify, claiming the protection of their constitutional privilege against self-incrimination. The commonwealth contended that they were not entitled to this claimed immunity as section 58 of the Act of March 31, 1860, P.L. 382, 18 Pa.C.S.A. § 1443, provides that no witness in any prosecution for unlawful gambling shall be excused from testifying concerning the same, but that "no evidence given or facts divulged by him shall be used or employed against him in any criminal prosecution whatever."
The trial judge held that section unconstitutional as it is in contravention of article 1, section 9, which provides that an accused in a criminal proceeding cannot be compelled to give evidence against himself, and refused to order the witnesses to testify. The commonwealth then rested and a demurrer to the evidence submitted by the defendants was sustained. In this appeal which followed, the commonwealth's sole complaint is that the court erred in holding section 58 of the Act of *273 1860, supra, unconstitutional. We are of the opinion that the court's conclusion is correct.
The constitutional provision under consideration is of ancient origin with an interesting historical background, and can be traced to the time of Sir Edward Coke, when protection was granted as a result of the inquisitorial and unjust interrogation of accused persons by English ecclesiastical courts. See, In reWatson, (Mich.),
The courts have construed it to apply to witnesses as well as an accused in criminal proceedings (In re: Contempt of Meyers andBrei,
There are only two specific modifications to article 1, section 9, of the constitution, to wit, article 3, section 32, and article 8, section 10. The first provides that any person may be compelled to testify in a judicial proceeding against anyone who may be charged with having committed the offense of bribery or corrupt solicitation *274 and shall not be permitted to withhold his testimony on the ground that it may incriminate him. The latter states that no person shall withhold his testimony in a contested election investigation upon the ground that it may incriminate him.
In Commonwealth v. Cameron,
In re Doyle, (N.Y.),
The Supreme Court in Counselman v. Hitchcock,
Wigmore on Evidence, Vol. VIII, § 2283, pp. 522, 529, criticizes that ruling contending that the construction given expands the claim of privilege far beyond the intention of the framers. But many cases in addition to those cited, includingU.S. v. Monia et al.,
Does our statute provide complete immunity coextensive with the constitutional guarantee against a future prosecution for a crime to which questions asked the witness relate, or does it simply forbid the restrictive use of the testimony against him? It will be noted that in section 58, supra, it is provided that no witness shall be excused, etc., but no "evidence" given, or facts divulged by him, shall be used or employed against him in any criminal prosecution whatever. While in article 3, section 32, of our constitution, which, as stated above, was under consideration in Commonwealth v. *276 Cameron, supra, the word "testimony" appears. There is no particular difference in the meaning of those two words in the statute and constitution. In Counselman v. Hitchcock, supra, the statute involved used the word "evidence." Nor do we think that the phrase "or facts divulged by him [witness]", which would include information given the commonwealth, not only at the trial, but prior thereto, materially enlarges the scope of immunity. Our statute to be constitutional should, but does not, in our judgment, completely protect a witness.
Section 4 of the Act of February 16, 1847, P.L. 111, (relating to the suppression of gambling, and subsequently repealed by section 79 of the Act of March 31, 1860, supra, P.L. 427), was the immediate and only predecessor of section 58, supra, and provided: "If any person shall be called to testify, on behalf of the state, . . . for any offense made punishable by this act, he shall thereafter be discharged of and from all liability to prosecution or punishment for such matter or offense." There is no doubt that act provides complete immunity and was constitutional: Brown v. Walker, supra, and other cases heretofore cited. It is thus apparent that it was the intention of the legislature in passing section 58 of the Act of 1860, supra, to withdraw the absolute immunity previously granted in section 4 of the Act of 1847, supra. Further confirmation of the legislative intent is found in section 54 of the Act of 1860, supra, which relates to lotteries and contains the clause: "The purchaser of such ticket, policy, or device, shall not be liable to any prosecution or penalty by virtue of this or any other law of the Commonwealth, and shall, in all respects, be a competent witness to prove the offense." That provision was originally enacted in section 3 of the Act of 1847, supra, and likewise confers full immunity. We may fairly conclude that the legislature was aware of the distinction between complete immunity and a mere prohibition of the use of the evidence against the witness in a subsequent prosecution. *277
We have not been unmindful that it is our duty to give, if possible, an interpretation of this statute that will not conflict with the constitution (Hotel Casey Co. v. Ross et al.,
Furthermore, the commonwealth has no right of appeal in this case. True, that question was not raised or discussed by either party, but we of our own accord can give it consideration: Com.ex rel. Stingel v. Hess,
The commonwealth's right of appeal is limited. It may not appeal from a verdict of acquittal in criminal prosecution for the purpose of reviewing erroneous rulings made during the course of a trial, except in the specific instances mentioned in the Act of May 19, 1874, P.L. 219, 19 P. S. § 1188, viz., prosecutions for nuisance, forcible entry and detainer, and forcible detainer:Commonwealth v. Obenreder,
It may appeal from an adverse decision where a demurrer to the indictment is sustained (Commonwealth v. Cohen,
The commonwealth may appeal also where the judge has sustained defendant's demurrer, which raised the pure legal question of the sufficiency of the proof to *278
support the crime charged: Commonwealth v. Kolsky,
We recognize that there is a certain similarity between a demurrer to the evidence in a criminal proceeding and a motion for a nonsuit in a civil proceeding (Commonwealth v. Marino,
Judgment of the court is affirmed.