156 Mich. 34 | Mich. | 1909
This is a proceeding to review an order of the circuit judge of Jackson county adjudging the petitioner guilty of contempt in refusing to answer certain questions put to him in the course of an examination before a commissioner, and ordering his incarceration until said questions should be answered.
The petitioner is an ex-convict, having been convicted
“Q. I will ask you whether or not you were under that sentence imprisoned in Jackson prison.
“Mr. Noon: I think I will say to you, Mr. Allison, that you can exercise your constitutional right to refuse to answer by advice of counsel, and if you feel that answer tends to incriminate you.
‘ ‘A. That is my position in the matter. * * *
“Q. I will ask you, Mr. Allison, when, if at all, you escaped from Jackson prison after being confined ?
*36 “Mr. Noon: One moment, Mr. Allison. I object to that for the reason you have a right to exercise your constitutional privilege.
“Q. Do you still refuse to answer the question ?
“A. Yes, sir. * * *
“Q. Mr. Allison, did you, together with Spellman and Slater, escape from Jackson prison on or about the 9th day of August, 1904 ?
“Mr. Noon: I advise you, Mr. Allison, you may refuse to answer that question, relying on your constitutional privilege if it would tend to incriminate you.
“Q. Do you refuse ?
“A. Yes, sir. * * *
“Q. I will ask you if Slater, Spellman, and yourself did not immediately go from the State of Michigan, after escaping from Jackson prison about August 9, 1904, into the State of Indiana.
“Mr. Noon: Same advice, Mr. Allison.
“ Q. Do you refuse ?
“A. Yes, sir. * * *
“Q. State whether or not you were near or about the premises of Theresa Hertram, commonly called ‘Mother’s Place,’ together with Larry Spellman and Harry Slater, on or about the 12th day of August, 1904.
“Mr. Noon: Same advice, Mr. Allison, as to that question.
‘ ‘ Q. Do you refuse ?
“A. Yes, sir.
“Q. State whether or not one of your party, Spellman, Slater, or yourself, called up John Talbot, from the Her-tram place and asked him to come out and join you; that you were there and wanted to see him.
“Mr. Noon: I advise you, Mr. Allison, you may rely on your constitutional privilege and refuse to answer.
“Q. Do you refuse to answer ?
“A. Yes, sir.
“Q. I ask you whether or not you are acquainted with Joseph E. Talbot of the city of South Bend.
“Mr. Noon: You may refuse to answer that, on my advice as counsel.
“Q. Do you refuse to answer ?
“A. Yes, sir. * * *
“ Q. State whether or not John W. Talbot, at the home of Joseph E. Talbot, on the evening of August 12, 1904,*37 gave Larry Spellman, Slater, or yourself, two guns or revolvers.
“Mr. Noon: You may refuse to answer that, Mr. Allison, for a like reason.
“Q. Do you refuse to answer ?
“A. Yes, sir.
“Q: State whether or not John W. Talbot and Joseph E. Talbot provided you, Spellman, and Slater with clothes, which you used in exchange for the prison clothing that you wore at the time of your arrival in South Bend, on or about August 12th.
“Mr. Noon: You may refuse to answer that question for a like reason.
“Q. Do you refuse to answer ?
“A. Yes, sir.. * * *
“Q. State whether or not John Talbot, on or about the 12th day of August, 1904, at the home of Joseph E. Talbot, gave you, meaning by ‘you,’ yourself, Spellman, or Slater, about $25 in money.
“Mr. Noon: You may refuse to answer that, Mr. Allison, if the answer tends to incriminate you with all other answers.
“Q. Or any sum of money F
“Mr. Noon: I want it to be shown when he refuses to answer it is for that reason, and that is the reason, that the answer may tend to incriminate him. That has been the ground upon which you refuse to answer each and every question, that it would tend to incriminate you.
“ The Witness: Yes, sir.
“Q. State whether or not did you leave the city of . South Bend on or about the 12th day of August, 1904, secretly, continuing your journey down through the State of Indiana.
“Mr. Noon: You may refuse to answer that, Mr. Allifeon, exercising your privilege.
“Q. Do you refuse to answer ?
“A. Yes, sir; for the reason stated before.
“Q. (showing witness paper) I will refer to this as ‘Exhibit A.’ I have a document in my hand I will identify by being referred to by ‘ Exhibit A.’ I will ask you if the signature attached to that document is your signature.
“ Mr. Noon: You may look it over, Mr. Allison, and you may refuse to answer, if the answer will tend to incriminate you. Take the paper and look at it. I want to say, Mr. Allison, if that paper contains anything in refer*38 ence to your escape from the prison or your alleged escape from the prison, you may refuse to answer in the exercise of your constitutional privilege that it may tend to incriminate you.
“A. I refuse to answer that question on the ground I believe it will tend to incriminate me.
“Q. I will ask you whether that is your signature.
“ Mr. Noon: That is what he refuses to answer.
“Q. I ask you whether that instrument marked ‘Exhibit A ’ is not a confession made by you while confined in the Jackson prison, January 3, 1908.
“Mr. Noon: You may refuse to answer that, Mr. Allison, for a like reason.
“A. Yes, sir; I do, because I think it will tend to incriminate me.
“Q. I will ask you if you did not sign this instrument as your confession, stating the facts surrounding and incident to the Richland bank robbery, your conviction on the charge, your sentence and confinement in Jackson prison, your escape from Jackson prison, your going into the State of Indiana, in and about the city of South Bend, where you received assistance and aid in concealment and your escape from Joseph E. Talbot and John W. Talbot along about the 12th day of August, 1904.
“Mr. Noon: Same objection, Mr. Allison, and this is the exercise of your privilege.
“A. I shall decline to answer that question on the ground that it will tend to incriminate me.”
The foregoing is but a portion of the examination of the witness, but is sufficient to indicate the character of the testimony sought from the petitioner. Upon his refusal to answer the several questions above set forth and others of a like nature, the matter was taken before the circuit judge, who, after hearing counsel for petitioner and for the committee prosecuting the disbarment proceedings, ordered the petitioner to answer the questions or starid committed to the county jail. This is the order we are asked to review.
The circuit judge in his return to the order to show cause has attached a certified copy of the petition for disbarment of Talbot in the Indiana court, and a copy of Exhibit A, the alleged confession of the petitioner, pur-
This, as we have endeavored to point out, is not possi
The order requiring the petitioner to answer or stand confined will be set aside and held for naught.