29 Nev. 352 | Nev. | 1907
By the Court,
A writ of habeas corpus was issued and made returnable before this court upon a petition filed and presented by George S. Green in behalf of J. F. Hedden, alleging that said Hedden was unlawfully imprisoned and restrained of his liberty at Hawthorne, Esmeralda County, Nevada, by the sheriff of said county and state. There appears from the petition and return of the sheriff to said writ the following facts and proceedings: On February 26, 1907, the district attorney of Esmeralda County, Nevada', issued a subpena duces tecum directed to the said J.' F. Hedden and one A. J. Lyon, commanding them to appear and attend before the
On March 25,1907, the grand jury of Esmeralda County, Nevada, submitted to the district court of said county and state the following partial report: "Hawthorne, Nevada, March 25, 1907. To the Hon. F. P. Langan, District Judge of the District Court of the First Judicial District of the State of Nevada, Esmeralda County, Presiding: The grand jury of Esmeralda County hereby submits to the above honorable court a partial report of the proceedings and action of the grand jury in the case of The State of Nevada v. J. F. Hedden, on a charge of perjury. That in investigating said charge one A. J. Lyon was regularly subpenaed to appear before the grand jury to testify in the above-entitled case, and was ordered and commanded by said subpena to produce before the said grand jury the ledger of the Tonopah and Goldfield Railroad Company for the year 1906, the record of vouchers audited and issued for the year. 1906, the record of operating expenses for the year 1906, a copy of the Interstate Commerce Report for the years 1905 and 1906, monthly reports made to the board of directors or other officers of the company for each and every month during the years 1905 and 1906; and all other books and papers of .the Tonopah and Goldfield Railroad Company, showing cash on hand and in bank each month during the year 1906, and also all other papers showing any and all of the properties of the Tonopah and Goldfield Railroad Company situated in the County of Esmeralda, State of Nevada, during the year 1906. That in response to said subpena issued by A. H. Swallow, District Attorney of Esmeralda County, State of Nevada, said subpena being hereby referred to and made part of this report,
After citing the salient facts and matters as set forth in the partial report of the grand jury and reviewing the legal phases of the situation presented, the court in its opinion premising the order, on account of which petitioner complains he is deprived of - his liberty, made the following in the nature of findings of fact: "Mr. Lyon on March 4, 1907, was under a subpena duces team to produce to the grand jury of Esmeralda County on the 19th day of March, 1907, the books and papers which he on said March 4, 1907, had in his possession and which by said subpena he was required to produce, said books and papers being the property of the
In a very able presentation of this case by respective counsel, orally and by brief, two main questions are submitted to this court for consideration, wherein is involved the jurisdiction of the lower court to have made the order committing J. F. Hedden into the custody of the sheriff until such time as he complied with said order commanding him to forthwith deliver to A. J. Lyon the books and papers called for in the subpena duces tecum. It is contended by petitioner, first, that the order of the lower court commanding him to turn over the books and papers in question to Lyon is void, because in effect it would be compelling him to become a witness against himself in a criminal proceeding against him then under investigation by the grand jury, and would therefore be in violation of his constitutional rights guaranteed him by both the Constitution of the United States and of the State of Nevada. Secondly, that the proceedings in which the order culminated committing Hedden into custody were not in accord with the mode .required by law and that said order is therefore void. The maxim, "Nemo teneter se ipsum accusare,” is derived from the common law, and was reaffirmed in Magna Charta, whence it was transferred, in slightly, varied form, into the Constitution of the United States where we find it thus expressed in the fifth amendment: "That no person * * * shall be compelled in any criminal case to be a witness against himself.” And verbatim in section 8 of article I of the Constitution of Nevada this same provision exists. This wise provision protecting the citizen in his personal liberty in this respect, as expressed in the celebrated case of Brown v. Walker, 161 U. S. 596, 16 Sup. Ct. 640, 40 L. Ed. 819, had its origin in a protest against the inquisitorial and manifestly unjust methods of interrogating accused persons which long obtained in the continental system, until the expulsion of the Stuarts from the British throne in 1688. The abuse of the right to interrogate persons accused of crime, the temptation to press the witness unduly to wring confessions from him under torturous or painful methods, to force him
Meritorious and stringent as this general rule is, there are, however, certain classes of cases which have always been treated as exceptions, because not falling within the reason of the rule. When examined, these cases will all be found to be based upon the idea that if the testimony sought can
So, under modern statutes permitting accused persons to take the stand in their own behalf, they may be subjected to cross-examination upon their statements. (State v. Whitam, 72 Me. 531; Commonwealth v. Morgan, 107 Mass. 199; People v. Casey, 72 N. Y. 393; State v. Cohn, 9 Nev. 179.)
For the same reason, if the prosecution for a crime concerning which the witness is interrogated is barred by the statute of limitations, he may be compelled to answer. (Manhanke v. Cleland, 76 Iowa, 401, 41 N. W. 53; Weldon v. Burch, 12 Ill. 374; Floyd v. State, 7 Tex. 215; Calhoun v. Thompson, 56 Ala. 166, 28 Am. Rep. 754.) Again, if the answer of the witness may have a tendency to disgrace him and bring him into disrepute, and the proposed evidence be material to the issue on trial, the great weight of authority is that he may be compelled to answer, although, if the answer have no effect upon the case, except so far as to impair the credibility of the witness, he may fall back upon his privilege. (1 Greenleaf on Evidence, 454, 455; Weldon v. Burch, 12 Ill. 374; Ex parte Rowe, 7 Cal. 184.) So, also, where by statute absolute immunity from prosecution is guaranteed to the witness in regard to anything he may testify concerning, he may be compelled to testify. (Brown v. Walker, 161 U. S. 591, 16 Sup. Ct. 644, 40 L. Ed. 819; Counselman v. Hitchcock, 142 U. S. 548, 12 Sup. Ct. 195, 35 L. Ed. 1110.) In view of the facts and proceedings in this case, we believe another well-defined line of exception can be well taken to the general rule, which we will hereafter cite.
After citing at length the facts presented in the case, Judge Gilbert in his opinion said: "While the proceedings began with a subpena duces tecum directing the petitioner to bring before the grand jury the boobs and records of the Barber Lumber Company, they finally resulted in an ultimatum from the court ordering him to produce the books and papers and submit them to the inspection of the grand jury, and giving the grand jury the authority, which was expressly denied to the petitioner, to determine what was pertinent and what was not pertinent to the subject which was under consideration. That subject had been announced in open court to be the investigation of the proceedings whereby the Barber Lumber Company had acquired title to timber lands of the United States in the State of Idaho. It was not disputed that the Barber Lumber Company was incorporated without the State of Idaho, and that the petitioner was and from the first had been the manager of its
In the case of petitioner Hedden it cannot be said that the corporate books and papers in his possession are to all
But it is claimed in this ease that Hedden was equally bound to obey all the commands of the subpena because he was named in it first, and it was first served on him. In fact, it is repeatedly urged that Hedden, instead of obstructing the due administration of justice, has obeyed explicitly the process of the court, and has only exercised his constitutional privilege of refusing to become a witness against himself. The subpenaing of Hedden as a witness in a criminal investigation against himself certainly imposed no duty or obligation on his part to produce before the grand jury books, documents, or papers, etc., which were not, nor never have been, in his possession or control, and which at the time he knew were and had been in the control and custody of another who was regularly subpenaed to produce them. The trial court evidently concluded that the transfer of the possession of the documentary evidence in question from the custody of Lyon to that of Hedden the day before the grand jury met, as found by Judge Langan, was for the purpose of .putting it, if possible, out of the reach of the grand jury’s investigation, and under the circumstances we are of the opinion that the lower court properly proceeded in so far as the order is concerned requiring the petitioner to return to Lyon the books, papers, and documents mentioned in the subpena and which were by said Lyon turned over to Hedden on the 18th day of March, 1907, the day preceding the meeting of the grand jury.
The contention that the order is too broad, in that it calls
In further support of our view of the matter that petitioner would not be privileged to withhold or suppress the books and papers in question as evidence before the grand jury upon the ground that it would be compelling him to become a witness against himself, we cite McElree v. Darlington, 187 Pa. St. 593, 41 Atl. 456, 67 Am. St. Rep. 592; In re Moser, 138 Mich. 302, 101 N. W. 588; McAlister v. Henkle, 201 U. S. 90, 26 Sup. Ct. 385, 50 L. Ed. 671.
Before judgment is passed upon a defendant, either depriv
"3555. Sec. 460. The following acts or omissions shall be deemed contempts: First — Disorderly, contemptuous, or insolent behavior towards the judge whilst holding court, or engaged in bis judicial duties at chambers, or towards referees or arbitrators, while sitting on a reference or arbitra*372 tion, or other judicial proceeding. Second — A breach of the peace, boisterous conduct, or violent disturbance in the presence of the court, or in its immediate vicinity, tending to interrupt the due course of a trial, or other judicial proceeding. Third — Disobedience or resistance to any lawful writ, order, rule, or process issued by the court or judge at chambers. Fourth — Disobedience of a subpená duly served, or refusing to be sworn or answer as a witness. Fifth — Rescuing any person or property in the custody of an officer by virtue of an order or process of such court or judge at chambers. Sixth — Disobedience to the order or direction of the court made pending the trial of an action, in speaking to or in the presence of a juror concerning an action in which such juror has been impaneled to determine, or in any manner approaching or interfering with such juror, with the intent to influence his verdict.
”3556. Sec. 461. When a contempt is committed in the immediate view and presence of the court or judge at chambers, it may be punished summarily, for which an order shall be made, reciting the facts as occurring in such immediate view and presence, adjudging that the person proceeded against is- thereby guilty of a contempt, and that he be punished as therein described. When the contempt is not committed in the immediate view of the court or judge at chambers, an affidavit shall be presented to the court or judge of the facts constituting the contempt, or a statement of the facts by the referees or arbitrators.
"3557. Sec. 462. When the contempt is not committed in the immediate view and presence of the court or judge, a warrant of attachment may be issued to bring the person charged to answer, or without a previous arrest a warrant of commitment may, upon notice, or upon an order to show cause, be granted; and no warrant of commitment shall be issued without such previous attachment to answer, or such notice or order to show cause.”
The question as to whether or not the court had the authority at the time it entered the order complained of, and whether or not the order or any part thereof is void, because of having improperly proceeded, as we view the case, practically
It has been declared without qualification by the Supreme Court of the United States in the case of New Orleans v. Steamship Co., 20 Wall. 387, 22 L. Ed. 354, that a "contempt of court is a specific criminal offense,” and that the judgment therein is a judgment in a criminal case; and numerous cases may be found containing unqualified declarations of similar import. There is, however, a line of authorities which indicate that contempt proceedings are civil and not criminal, but, while the apparent conflict of views cannot in all cases - be. reconciled, much of the inconsistency disappears if con-tempts be regarded as civil or criminal according to their nature and effect. This distinction is substantially recognized by Sir William Blackstone in his famous work. See 4 Blaekstone’s Commentaries, c. 20.
Mr. Rapalje, in his work on Contempts, at section 21, gives the best general definitions relating thereto we have found. He says: "Civil contempts are those quasi contempts which
But, irrespective of whether or not the proceedings prior to a judgment in a contempt case be civil or criminal, we believe that unless the contempt is committed in the immediate view and presence of the court, and when we say immediate view and presence of the court we mean in the ocular view of the court, or where the court has direct knowledge of the contempt, that the rights of every defendant should be protected as evidently designed by the authors of our statute when they provided that, when the contempt is not in the immediate view and presence of the court, the charge should be made by affidavit and the contemner given the right to show cause why he should not be punished for contempt, and prove or disprove the charges against him before judgment be passed upon him. This right to defend one’s self, either civilly or criminally, in any action which may be instituted wherein his liberty or property is involved, is the sacred privilege of every citizen and of such trans
The order therefore committing petitioner into the custody of the sheriff is void, and he is ordered released forthwith.