67 Tenn. 89 | Tenn. | 1874
Lead Opinion
delivered the opinion of the court.
The defendant appeared before the grand jury of Greene county under subpoena, at the October term, 1874, of the circuit court of said county, to testify as to violations of the laws to suppress unlawful gaming. He was regularly summoned by the grand jury under the inquisitorial powers conferred by statute- upon that body, to inquire generally as to said offense, and to
The inquisitorial power as to violations of the laws to suppress gaming was first conferred upon the grand jury in this State by 'the act of 1825, ch. 5, see. 2,. which required the grand jury to send for witnesses whenever they or any of them suspect a violation of the laws against gaming. Code, sec. 5087. The vice was of such general prevalence, and so often baffled detection because of the fact that gamblers and persons haunting gaming houses, could alone, as a general thing, give information thereof, the Legislature in its anxiety to extirpate the vice, passed the act of 1829, ch. 31, sec. 2, and 1841, ch. 5, sec. 2, which forbade the indictment or prosecution of any witness for any offense as to which he has testified before the grand.
With the modification indicated, let the judgment be affirmed.
Dissenting Opinion
dissented as follows:
We dissent from the opinion of the court in this case for the following reasons:
We concur in the opinion that the right to refuse to give testimony that will or may criminate a witness is protected by the constitution, and that it is of inestimable value.
We agree that when a witness has so testified the law abrogates the offense as to him so far that he cannot afterwards be prosecuted. But we do not concur in the conclusion drawn from these premises, that the Legislature intended, or that they could, if they had so intended, to deprive the witness of his constitutional right to refuse to give evidence as to his own criminality. We hold that the law does not abrogate the offense until the witness has testified, but that after the witness has testified, the law then virtually operates to abrogate it and shield him from prosecution. The act of testifying constitutes the abrogation of the offense under the law. This only occurs after the witness has voluntarily waived his constitutional right to refuse to testify. If he does not voluntarily waive his right, he cannot be deprived of it by a compulsory law.
Considering, therefore, the several positions laid down in the opinion of the majority of the court, we respectfully dissent from their conclusions, and concur with the diction of Judge McHenry in State v. Hatfield, 3 Head, 232, in which he says: “ the witness cannot be compelled to testify against himself, but as an inducement to a full and unrestrained disclosure in regard to others, without hurt to himself, it was
On application to re-open
said:
We have considered the argument presented in support of an application to have this case re-opened and re-argued. We adhere to the doctrine of the opinion heretofore delivered, that no person criminates himself in the sense of the constitution, unless he accuses himself of some public offense for which he must suffer a penalty. There being no such accusation possible in this case, there is no crimination.
Dismiss the petition.