196 N.E. 412 | Ohio | 1935
These plaintiffs in error will be referred to as the defendants, who seek to invoke the cloak and protection of the immunity provisions contained in Article I, Section 10 of the state Constitution and in the Fifth Amendment of the federal Constitution, which provide that no "person shall be compelled, in any criminal case, to be a witness against himself." It is the contention of the state that Section 13444-4, General Code (113 Ohio Laws, 186), purports to grant complete immunity from prosecution for nine separate misdemeanors, six of which pertain to offenses concerning gambling, and three to intoxicating liquors. The pertinent part of the section reads as follows: "If a person called to testify on behalf of the state before a magistrate, the grand jury or court, upon *577 complaint, information, affidavit or indictment, discloses a fact tending to incriminate himself as to a misdemeanor hereafter named, he shall be discharged from liability for prosecution or punishment for such offense, viz." We are confronted with the construction of the foregoing section of the General Code for the purpose of determining whether it applies to the testimony and disclosures of a witness before a grand jury where no written complaint, charge or accusation had been made against anyone, and none had been lodged before any court or magistrate. No one doubts the power of a grand jury to investigate, on its own initiative, crimes and offenses committed within the county, and its prerogative so to do is not impinged upon by this or any other statute. But here we have a statute embracing plain and unambiguous terms. It gives immunity to a witness only when he is called to testify on behalf of the state "upon complaint, information, affidavit orindictment." There is no question that informations, affidavits and indictments require legal process and must be couched in written form, charging an individual with a specific offense and apprising a court or magistrate of its nature. The term complaint" is grouped with the other terms, viz.: "information, affidavit or indictment," which do require formal, legal process and, being included in that group, should be given the same legal meaning.
Had an accused person been bound over by a magistrate, under the provisions of Section 13433-10, General Code, it might be plausibly argued that the grand jury was acting upon complaint initiated by affidavit. However, that feature is not presented in this record. The grand jury is an inquisitorial body. In this thisinstance, there could be no "complaint" until after the investigation was concluded by the grand jury. In law, the word "complaint" connotes a formal written charge of some specific offense and alleges that a crime was committed by a specified offender. In defining the *578 word "complaint" when used in legal proceedings, Webster's New International Dictionary defines it as follows: "Law. A formal allegation or charge against a party, made or presented to the appropriate court or officer, as for a wrong done or a crime committed." In "Words and Phrases" is found the following definition of the same term: "A 'complaint' is a form of legal process, which consists of a formal allegation or charge against a party, made or presented to the proper court or officer, as for a wrong done or a crime committed.
The state of Iowa had a provision in its Code that "no prosecution for adultery can be commenced but on thecomplaint of the husband or wife." In State v. Stout,
Without further extending this opinion it may be stated that when complaints are required in criminal *579 prosecutions they serve the same purpose as do affidavits before a magistrate and must bear the stamp of a written accusation. In 16 Corpus Juris, 286, Section 492 et seq., citing many cases in its support, the text states: "The term 'complaint' is a technical one, descriptive of proceedings before magistrates. It is the preliminary charge or accusation against an offender, made by a private person or an informer to a justice of the peace or other proper officer, charging that accused has violated the law. * * * The term is used with reference to accusations not made by the grand jury or the state's attorney."
In our own state, prosecutions for misdemeanors by information, in lieu of indictment, in our Common Pleas Courts, are provided for by Section 13437-34, General Code. This section distinctly stipulates that informations must have the same legal forms and sufficiency required of indictments. Prosecutions for gambling can only be instituted by affidavit, information or indictment which require written process. Ohio has provided no authority for such prosecutions by initiating unwritten, informal "complaints" — a practice which is unknown to our Code of Criminal Procedure. The terms "complaint" and "affidavit" are often used interchangeably, as in Section 13429-6, General Code; and if, in this instance, we should give the word complaint any vitality, we must necessarily construe it as meaning a written complaint initiated by way of affidavit, information or indictment; otherwise we must discard it altogether.
In construing penal statutes, we must adhere to the well settled rule that they require a strict rather than a liberal construction. See annotations in 37 Ohio Jurisprudence, 744, Section 420 et seq. The Legislature has recognized this rule in criminal proceedings, as shown by its adoption of the latter clause of Section 10214, General Code, stipulating that the "section shall not be so construed as to require a liberal construction *580 of provisions affecting personal liberty, relating to amercement, or of a penal nature." Adhering to this rule, and giving to the term "complaint" its legal signification, we are in accord with the opinion of the majority of the Court of Appeals that, since there was no information, affidavit or indictment, nor any written complaint before the grand jury for investigation, the claimed immunity statute, Section 13444-4, General Code, does not, and was not intended to apply to proceedings like the instant one, and a majority of the members of the Court of Appeals so held. After so deciding, we are unable to comprehend why a majority of that court upheld the trial court's order to answer all the questions, including some that were concededly self-incriminating.
This court has held that the refusal of a witness to answer a question on the ground that it would incriminate him is not conclusive, and he may be required to answer if the trial judge finds that his answer would not have the incriminating tendency claimed by the witness (McGorray, Sheriff, v. Sutter,
For the reasons stated, the judgments of the trial and appellate courts are reversed.
Judgments reversed.
STEPHENSON, MATTHIAS and DAY, JJ., concur.
WEYGANDT, C.J., dissents. *582