106 Mo. 602 | Mo. | 1891
This is an application by petition of J. L. Buskett for release on writ of habeas corpus from the custody of John W. Cooper, sheriff of Phelps
The petition and attached record show that petitioner was summoned before the grand jury of Phelps county as a witness, and was asked if he knew.the names of any parties or person who had been gambling with cards or otherwise in Phelps county within the last year. To this question he answered, yes. Petitioner was then asked who they were, other than himself. This question the witness refused to answer, giving as a reason for such refusal that the answer would criminate himself, and “ would lead to the divulging of evidence that would convict ” him of the misdemeanor. The fact of the refusal to answer was duly communicated to the •court. The court decided that the question was proper and that petitioner should answer, informing him at the same time that his testimony should, in no case, be used against him. Still refusing to answer he was adjudged guilty of a contempt, and a fine of $25 imposed upon him. In default of payment of the fine he was ordered committed to the county jail, until the fine should be paid. From this confinement he asks to be discharged.
Petitioner insists that he was privileged to refuse to answer the question on the ground of the protection guaranteed him by section 23 of the bill of rights, which provides that “no person shall be compelled to testify against himself in a criminal cause.” On the other hand the state contends that ample protection was afforded petitioner under section 3819 which is as follows: “No person shall be incapacitated or excused from testifying touching any offense committed by another, against any of the provisions relating to gaming, by reason of his having betted or played at any of the prohibited games or gaming devices, but the testimony which may be given by such person shall in .no case be used against him.”
Petitioner claims that section 23 of the bill of ■rights, providing that “no person shall be compelled to testify against himself in a criminal cause,” gives him the absolute right to refuse answering any question or giving any testimony which would either tend directly to prove him guilty of a crime, or would afford information or point out sources of information which might lead to fastening a crime upon himself; that section •3819 falls short of giving him that full and complete indemnity against prosecutions for crimes, about which .he may be called to testify, and which may be indirectly disclosed by the evidence given, and that said .section is, for that reason, in conflict with section 23 of the bill of rights, and is without force or validity.
The common-law maxim which is thus incorporated in the constitution of the state has ever been estimated and held as one of the most sacred personal rights guar.anteed the citizens of this country and of England. It finds a place in every state constitution as well as in that of the United States, and should, therefore, receive .■such liberal construction as. will secure to the citizen its full protection against inquisitorial oppression. The right thus secured would be but an empty mockery if its privileges could be impaired under a pretense of .legislative regulation.
It becomes proper, then, briefly to inquire into the extent of the privilege thus accorded, in the absence of any statutory protection, and see what, if any, rights .are infringed. In People v. Hackley, 24 N. Y. 74,
The question came before this court in a very early day in Ward v. State, 2 Mo. 120, in which McGirk, C. J., wrote the opinion of the court. The facts in the case were similar to those shown by this record. A witness before the grand jury was asked: “Do you know of any person or persons having bet at a faro table in this county within the last twelve months ?” To which the witness answered, “Ido.” The witness was then ¿sked to tell what person or persons have so bet other
It is said by the supreme court of Virginia, Kendrick v. Commonwealth, 78 Va. 493, in speaking of a similar provision of the constitution of that state: “It ought to be construed with the utmost liberality consistent with the due execution of the laws and the safety of society. But, while it is a settled maxim of law that no man is bound to criminate himself, it is also a rule of law and a necessity of public justice, that every person is compellable to bear testimony in the administration of the laws by the duly constituted courts of the country.” This court in State v. Talbott, 73 Mo. 357, cites approvingly the rules given by Grreenleaf in his work on'evidence (vol. 1, sec. 451), “ where the answer will have a tendency to expose the witness to a penal liability, or to any kind of punishment, or to a criminal -charge, the witness is not bound to answer.”
It will be seen by these decisions that the protection given the witness under -the constitution has not been construed literally, and confined to an exemption from •testifying in a criminal proceeding in which he himself is prosecuted, but has been extended to protect him in all ■cases in which his evidence would prove ‘ ‘ a necessary
The question then arises, does the statute afford the witness protection and immunity, equal to that afforded him under the constitution ? If it does so, then section 8819 does not deprive petitioner of any constitutional right or privilege, and is valid. There can be no doubt that the language of the statute granting protection, that “the testimony which may be given by such person shall in no case be used against him,” is as broad as the constitutional privilege, “that no person shall be compelled to testify against himself in a'crirninal cause.” It might, therefore, be sufficient to hold as was done by Brown, J., in U. S. v. McCarthy, 18 Fed. Rep. 89 : “The reason of the former rule exempting witnesses from giving compulsory testimony against themselves was that their testimony might be used to convict them. The statute above quoted, in preventing all possible use of testimony thus given, does away with the reason of the rule; and there is, therefore, no longer any ground for its application.” But in this case what fact could have been disclosed by petitioner in his testimony which could have been used as a link in a chain of evidence upon which he might have been convicted of a criminal offense, against the use of which, in a trial against himself, he was not given as full protection as the constitution afforded him % He was fully protected against the use of any admissions or declarations he may have made against himself. Suppose he had answered that he had seen A and B gambling with cards. What fact would have been disclosed that could have “formed a link in a chain of evidence” against himself ? To look on at others gaming is not a criminal offense subjecting the observer to prosecution.
It is insisted, however, and this is the main ground of contention, that facts might be disclosed which would afford facilities for fastening the guilt upon the witness. Thus it is contended, if witness should have answered
Referring again to the opinion of McGirk, C. J., in case of Ward v. State, supra, his concluding observations meet directly the point here urged : “ But in this case it is said, if the witness is bound to tell who bet at the game, without naming himself, then those persons who are named will be examined as to the fact whether-he bet; and, if the witness is not compelled to name who did bet, then they will remain unknown to the grand jury, and cannot be examined whether the witness bet. I understand this doctrine to be grounded more on the fear of retaliation than on any sound principle of law. Will the law permit a man to keep offenses and offenders a secret, lest the offenders should in their turn give evidence against him ? ” We think the protection of the statute coextensive with that intended to be afforded by the constitution. We are supported in this conclusion by the following cases, and others cited in 32 Gent. Law Jour. 368, construing like statutes. State v. Quarles, 13 Ark. 307; Kneeland v. State, 62 Ga. 397; Wilkins v. Malone, 14 Ind. 153 ; In re Counselman, 44 Fed. Rep. 268. Ordered that petitioner be remanded to custody.