47 Kan. 734 | Kan. | 1892
Opinion by
The petitioner, James M. Nickell,. alleges that he is illegally restrained of his liberty by the sheriff of Kingman county, because he refused to answer certain questions propounded to him against his will and over his-objections, in a certain case pending in the district court of Kingman county, wherein the state was plaintiff and he was defendant, on the 28th day of December, 1891. The material facts are, that on the 26th day of December, 1891, there was pending in the district court of Kingman county a criminal action against the petitioner for selling liquor. The-district judge issued an order which recited that there was-reasonable ground for believing that the petitioner had, by bribery, menace, false pretensions, coaxing, threatening, and offering to pay for time lost, etc., induced and compelled and caused certain witnesses to absent themselves from court, and disobey a subpoena issued in the case of The State v. James M„
The petitioner claims the right to be discharged and released from the order of commitment and warrant of the district court, on the ground that he was charged with a statutory crime; that § 155 of the crimes-and-punishments act makes it a misdemeanor for any person, by bribery, menace, or other means, to induce any witness to absent himself, or avoid a subpoena, or withhold his evidence, or deter any witness from appearing in
“That it does not find it necessary to consider any other point than that raised under the constitution as to the privileges of witnesses. It is urged, says the court, that a witness is not entitled to plead the privilege of silence except in a*737 criminal case against himself, but such is not the language of the constitution. Its provision is that no person shall be compelled in any criminal case to be a witness against himself. This provision must have a broad construction in favor of the right which it was intended to secure. The matter under investigation by the grand jury was a criminal matter, and the reason given by Counselman for his refusal was, his answer might tend to criminate him. His apprehension was that the answers might show that he had committed a crime against the interstate commerce act, for which he might be prosecuted. His answers, therefore, would be testimony against himself, and he would not be compelled to give them in a criminal case. It is impossible that the meaning of the constitutional provision could only be that a person should not be compelled to be a witness in a criminal prosecution against himself. The object was to insure that a person should not be compelled, when acting as a witness in an investigation, to give testimony which might tend to show that he himself had committed a crime. The privilege is limited to criminal matters, but it is as broad as the mischief against which it seeks fo guard.”
The case of the petitioner is stronger than the Counselman case. Here the' petitioner is charged with a crime, and the state was seeking to condemn and convict him out of his own mouth. Besides, the language of our constitution, if anything, is stronger than the fifth amendment to the constitution of the United States. Both by the letter and spirit of § 10 of the bill of rights, no person shall be a witness against himself. It does not even limit the right to criminal cases. We think the case of the petitioner comes clearly within the rule and right given by the fifth amendment to the constitution of the United States and the recent decision of the supreme court referred to, as well as § 10 of the bill of rights of our own constitution.
Another fatal objection which might be urged against the proceedings is, that the alleged contempt was not charged to have been committed in the presence of the court, and there was no written complaint properly verified, containing a statement of the facts constituting the offense, filed with the court. This has been held to be necessary in all cases of constructive
It is recommended that the petitioner be discharged.
By the Court: It is so ordered.
The same questions are presented in In re Edward McKenna as in the petition of James M. Nickell for a writ of habeas corpus, just decided, and the petitioner is discharged, upon the authority of that case.