14 S.E.2d 594 | Ga. Ct. App. | 1941
The court erred in sustaining the motion of the State to strike the plea in abatement to the indictment. All subsequent proceedings were nugatory.
The plea in abatement, in its material allegations, set forth: "(1) On June 24th, 1940, the said defendant was called before the grand jury of Jefferson County, Georgia, and was compelled to testify before that body concerning the truth of the accusation charged in the warrant upon which he was arrested. (2) Defendant says that he was forced to testify before the `true bill' was rendered, and that this testimony was taken into consideration by said body before taking such action. (3) Defendant says that his legal *17
and constitutional rights were invaded by his being compelled to testify before said body, and that the indictment rendered after such testimony is invalid." The court struck the plea as follows: "Upon a motion to strike, by the solicitor-general, this plea in abatement is stricken." The question for decision is, did the methods used, and for the purposes alleged in the plea in abatement, invalidate the indictment even though there were other competent witnesses who were sworn before the grand jury on the investigation? This question has never before been presented to the courts of review of this State, but it has been decided both affirmatively and negatively in many other jurisdictions, as we will hereinafter point out. The question grows out of a constitutional provision of our State. Our provision is to the same effect and import as those in the United States constitution, and in most, if not all, of those of the States, and has given rise to many learned and conflicting decisions in the several jurisdictions. Our constitution provides (Code, § 2-106), that "No person shall be compelled to give testimony tending in any manner to criminate himself." The right thus guaranteed was first presented for consideration to our Supreme Court in Marshall v. Riley,
Again, see Higdon v. Heard,
While we are aware that the decisions cited do not deal directly with the question before us as to whether an indictment is invalid because the defendant himself is called before the grand jury and forced to give evidence against himself, they afford a direct approach to the question guided by high authority. Let us turn for the moment and examine our legislative enactments, and see whether they tend to illuminate the issue. The Code, provides: "In the investigation of complaints by the Public-Service Commission *20 of violations of the laws against giving or granting rebates, or of underbilling, by common carriers, said commission is hereby given the power and authority to compel the shipper or consignee, or any officer, agent, or employee of a common carrier, to give evidence touching such complaints. Before any such person shall be compelled to give evidence touching such complaints, the commission shall make an order that such witness is required by the commission to testify, and that he is exempt thereafter from indictment or prosecution for any transaction about which he is so compelled to testify. When such order is made, the witness shall be compelled to give evidence touching such complaints, and he shall be forever free from indictment or prosecution in any court touching the matters about which he is compelled to testify." Code, § 93-506. "When a witness is exonerated from indictment or prosecution, as herein provided, he shall in like manner be compelled to give evidence in any suit or prosecution instituted in any of the courts of this State against any common carrier or against any person on account of the transactions about which he is compelled to testify before the Public Service Commission." § 93-507. "Every officer, agent, or employee of any common carrier, corporation, or company who shall violate, or procure, aid, or abet any violation, by any such common carrier or corporation or company, of any provision of this Title, or who shall fail to obey, observe, or comply with any order of the Public Service Commission or any provision of any order of the commission, or who aids or abets any such common carrier or corporation or company in its failure to obey, observe, and comply with any such order, direction, or provision, shall be guilty of a misdemeanor, and shall be subject to prosecution in any county in which said common carrier or corporation or company or officer, agent, or employee violates the provisions of this Title or any provision of any order of the commission, or in any county through which said corporation operates. Such officer, agent, or employee shall also be subject to indictment under the provisions of this Title, in any county in which a subordinate agent or employee of the company violates the provisions of this Title, by the approval or direction, or in consequence of the approval or direction of such officer, agent, or employee; and the agent or employee who locally in any county violates the rules or directions of said commission in pursuance of the direction or authority *21 of his superior officer or agent of said company may be called as a witness, and be compelled to testify, showing the authority by which he acted, and such testimony shall not be used against such subordinate employee or agent, nor shall he thereafter be subject to indictment for said offense." § 93-9901. "No party shall be required to discover matters tending to criminate himself, or to expose him to a penalty or forfeiture, nor to make discovery of irrelevant matters, nor the advice of his professional advisers, nor his consultation with them, nor matters relating to his own and not the plaintiff's case; nor shall official persons be called on to disclose any State matters of which the policy of the State and the interest of the community require concealment." § 38-1102. "No person shall be compelled to give testimony tending in any manner to criminate himself." § 38-417. "No person, who shall be charged in any criminal proceeding with the commission of any indictable offense or any offense punishable on summary conviction, shall be competent or compellable to give evidence for or against himself." § 38-416.
In State of Indiana v. Pence,
In People v. Bermel,
People v. Bermel, supra, is almost like the instant case. In United States v. Swift, 186 Fed. 1002, 1019, the court observed: "It is one thing to quash an indictment because the accused, in violation of his constitutional right, is brought before the grand jury and browbeaten or maltreated, or because private counsel is permitted to harangue the jurors, or because other like fundamental wrongs are permitted, and quite another thing to quash an indictment because a witness is asked concerning facts which mayhap do not tend to prove the charge which the grand jury is to inquire into." It was held, in Statev. Froiseth,
Counsel for the State argues that the court did not err in striking the plea, because (1) the plea did not allege that the indictment was returned upon testimony of the defendant alone, and the indictment showed to the contrary; and (2) the plea did not show what testimony was compelled, and whether such testimony tended to incriminate him. On the first of these propositions,Powers v. State,
Judgment reversed. Broyles, C. J., and MacIntyre, J.,concur.