Loewenherz v. Merchants & Mechanics Bank
87 S.E. 778
Ga.
1916
Check Treatment

Lead Opinion

Beck, J.

(After stating the foregoing facts.)

1-4. The rulings made in the first four headnotes require no elaboration.

5. We think the court erred in admitting the rule nisi in the contempt ease and the answer thereto. No person shall be compelled to give testimony tending in any manner to criminate himself. Constitution of Georgia, art. 1, sec. 1, par. 6 (Civil Code, § 6362).

When the claimant in this case declined to answer the questions set forth above, he was merely claiming and availing himself of the privilege guaranteed in the clause of the constitution quoted; and this privilege is a real privilege. The admission of evidence showing that the witness had declined to answer the questions propounded to him by the solicitor-general before the grand jury, when they were considering the ease of the State against Mooty, tended to deprive the witness of his privilege, or at least to abridge it and destroy its value; and a party should not be subjected to injury for availing himself of the privilege of refusing to answer questions which might have a tendency either to criminate him or subject him to penalty. Harrison v. Powers, 76 Ga. 219. It was said, in the opinion in the ease just cited: “A party is not bound *560to accuse himself either directly or indirectly. This principle is as old as Magna Charta and is embodied in all our constitutions, both State and Federal. Of what worth would the protection be if a party availing himself of it incurred detriment or loss by so doing? See authorities cited on brief of counsel for plaintiffs in error, as well as those cited by the defendant in error, and in addition Higdon et al. vs. Heard, 14 Ga. 255, 258; Gravett vs. State, 74 Id. 191.” .

In the case of State v. Bailey, 54 Iowa, 414 (6 N. W. 589), the Supreme Court of’Iowa said: “It would indeed be strange if the law should confer upon a witness this right as a privilege, and at the same time should permit the fact of his availing himself of it to be shown as a circumstance against him. It certainly is a privilege of very doubtful character if the effect of claiming it is as prejudicial to the witness as the effect of waiving it. In Greenleaf upon Evidence, § 450, it is said: ‘If the witness declines answering, no inference of the truth'of the fact is permitted to be drawn from that circumstance, and no answer forced from' him by the presiding judge, after he has claimed protection, can be afterwards given in evidence against him/ If an answer, involuntarily given, can not be proven against a witness, it would seem to follow that the fact that he has claimed his privilege can not be shown. See .1 Greenleaf on Ev. § 450, and authorities cited in note 5.”

Judgment reversed.

All the Justices concur, except Fish, G. J., absent.



Concurrence Opinion

Evans, P. J., and Hill, J.,

specially concurring in the judgment. A conveyance of land encumbered by a security deed operates only on the grantor’s equity of redemption; and if such grantor be insolvent, his conveyance of the land (the Value of which is in excess of the encumbrance) on condition that the purchaser will pay the encumbrance is without consideration and void as against creditors. Webb v. Atkinson, 124 N. C. 447; Randall v. Vroom, 30 N. J., Eq. 353; 1 Moore on Fraud. Con. 308. The charge of the court is in substantial accord with the foregoing proposition, which we believe states a correct principle of law; and we dissent from the ruling in the 4th headnote.