89 N.Y.S. 364 | N.Y. App. Div. | 1904
Lead Opinion
The relator, a witness before the grand jury of the county of New York, to testify in a proceeding against one Canfield, who was charged with a violation of section 344 of the Penal Code, was asked whether he had .ever been in the premises No. 5 East Forty-fourth street, in the city of New York; whether he had seen the said Canfield in the said premises No. 5 East Forty-fourth street, in the city of New York; and whether he had played roulette there? These questions the relator declined to answer; and when directed by the foreman of the grand jury to answer he persisted in his refusal. The grand jury then made a presentment to the Court of General Sessions, setting forth the refusal of the relator to answer the questions; and the relator, then present in court, was asked in the presence of the grand jury whether or not he would answer the questions propounded to him by the grand jury. In reply the relator declined to withdraw the refusal already made before the grand jury and stated that he would not, if recalled, answer the questions; whereupon the court ordered and adjudged that the relator was guilty of a, criminal contempt of court in having refused to answer the legal and proper interrogatories addressed ■to him by the grand jury during the sitting of .the court in its immediate view and presence; and further adjudged that the relator be imprisoned in the common jail of the county of New York for a period of fifteen' days unless he should purge himself of the contempt. The relator thereupon presented a petition to- the Supreme Court asking for a writ of certiorari to review this commitment for contempt. ,
There is annexed to this petition a transcript of the proceeding ■ before, the grand jury, from which it appears that the relator refused to answer on advice of counsel, upon the ground, among others, that his answer might tend to criminate or degrade him or subject him to a penalty or forfeiture, and he claimed his constitu- I tional rights and privileges. By the return to the writ of certiorari II it appears that the district attorney of the county of New York H appeared before the grand jury and laid before them an informa- ■ tion charging that one Richard A. Canfield used certain premises, IH No. 5 East -Forty-fourth street, in the city of New York, for fl gambling and allowed tó be played in said premises certain gam- H
This information was presented to the grand jury under chapter 9 •of title 10 of the Penal Code. Section 344 of said Code, which is in that chapter, provides that “ a person who is the owner, agent or superintendent of a place, or of any device, or apparatus, for gambling; or who hires, or allows to be used a room, table, establishment or apparatus for such a purpose ” is a common gambler, and punishable by imprisonment for not more than two years, or by a fine not exceeding $1,000, or both. Section 342 of the Penal Code, as amended by chapter 649 of the Laws of 1904, provides that “ no person shall be excused from attending and testifying * * 1 * before any court or magistrate upon any investigation, proceeding or trial, for a violation of any of the provisions of this chapter upon the ground or for the reason that the testimony or evidence, documentary or otherwise, required of him may tend to convict him of a crime or to subject him to a penalty or forfeiture; but no person shall be prosecuted or subjected to any penalty or forfeiture for or on account of. any transaction, matter or thing concerning which he may so testify or produce evidence, documentary or otherwise, and no testimony so given or produced shall be received against him upon any criminal investigation or proceeding.” Upon this appeal the objections taken are that chapter 649 of the Laws of 1904, amending section 342 of the Penal Code, is unconstitutional; and that if constitutional the section as amended does not apply to an investigation into a violation of chapter 9 of title 10 of the Penal Code committed before the act of 1904 became a law.
The objection to the constitutionality of the act is based upon section 6 of article 1 of the Constitution which provides that no person shall “ be compelled, in any criminal case, to be a witness against himself,” and the relator insists that by compelling him to
The right of a witness to refuse to answer a question upon the ground that it would tend to criminate him or. subject him to a. penalty or to disgrace or degrade him is not protected by a constitutional provision. It is within the power of the Legislature to determine the extent and limit of the personal right of a witness to refuse to answer questions asked him in the Course of a judicial proceeding The Legislature has power to require a witness to answer any question, except so far as he is protected by the constitutional provision which prohibits his being compelled to be a witness against himself, and it follows that if the answers to the questions asked cannot in any way be used against the witness in a criminal proceeding the provisions of the Constitution are not violated.
For a refusal to answer similar questions upon a former proceeding against Canfield this relator was committed for contempt, and upon a review of that commitment this court held in People ex rel. Lewisohn v. O'Brien (81 App. Div. 51) that under section 342 of the Penal Code, as it existed before the amendment of 1904-(See Laws of 1881, chap. 676, § 342), the relator could not be compelled to answer questions as to his relations with Canfield, and that, therefore, the court was not justified in requiring him to answer questions • or in adjudging him guilty of contempt for his. refusal; and this was affirmed by the Court of Appeals (176 N. Y. 253). Judge Babtlett, in delivering the opinion of that court, says : “ The relator seeks to justify his refusal to answer under article one, section six of the Constitution of this State, which provides that no person £ shall be compelled in any criminal case to be a witness against himself,’ ” and that the provision of section 342 of the Penal Code, as it then existed, did not afford him full protection. The court then, after discussing the case of People ex rel. Hackley v. Kelly (24 N. Y. 74) and the decision of the Supreme Court of the United States in Counselman v. Hitchcock (142 U. S. 547), followed the decision of the Supreme Court of the United States and construed this constitutional provision as meaning not only that a person should not be compelled te be a witness-.against himself in a criminal -proceeding, hut that its. object was to insure a person from being compelled to give testi
We think there is no doubt but that this statute does give the
It follows, therefore, that the relator was not justified in refusing to answer because the protection afforded him by the Penal Code was not sufficient.
I do not think that the application of section 342 of the Penal v-Code, as amended by thé act of 1904, to a proceeding commenced after its passage is giving it a retroactive effect. The section as amended applies only to the rights of a witness attending and testifying or producing books, papers or other documents before a court Or magistrate upon'any investigation, proceeding or tidal, for a violation of the provisions of the chapter of the Penal Code of which the section is a part. It relates to a rule of evidence and does not bear at all upon the commission of the offense or the evidence necessary to prove it. It acts not upon the person charged with
I have come to the conclusion, therefore, that this relator was-bound to answer; that he was not justified in disobeying the order of the court directing him to answer, and - for that reason he was-properly pumshed for his contempt.
It follows that the writ must be dismissed and the proceedings, affirmed, with costs.
Van Brunt, P. J., concurred in result; McLaughlin and Laughlin, JJ., dissented.
Dissenting Opinion
The relator was adjudged guilty of a criminal contempt because he refused to answer certain questions put to him by the foreman of the grand jury of the county of New York. By writ of certiorari he asks this court to review, and if error were committed to reverse, the action of the court below. The grand jury,, at the time the-.
The court below held, and a majority of this court is about to affirm the decision, that the relator—complete immunity having been given by the .section of the Penal .Code as amended — was guilty of a criminal contempt in refusing to answer, notwithstanding the fact that the amendatory act was passed subsequent to the ¡alleged commission by Canfield of the crime which was the subject-matter of the investigation.
.I am unable to concur in this view. To do so requires us to hold that .the act of 1904 has a retroactive effect, when there are no words
It is'suggested in the prevailing opinion that the application of section 342 of the Penal Code, as amended by. the act of 1904, to a proceeding commenced after its passage is not giving it a retroactive effect. I think it is. 16 Every statute,” says Mr. Justice Story in Society, etc., v. Wheeler (2 Gall. 139), “ which * * * creates a new obligation, imposes a hew duty or attaches a new disability in respect to transactions or considerations already past, must be deemed retrospective.” (See, also, Dash v. Van Kleeck, 7 Johns. 477; Calder v. Bull, 3 Dall. 386.) That the act of 1904. creates a new obligation and imposes a new duty upon the relator, if it be held to apply' to past transactions, cannot, as it seems to ,me, be seriously questioned. Prior to its passage he was under no obligation to answer the questions propounded to him, and the courts, have so decided. Not only this, but the statute is in one sense penal in character, inasmuch as it makes him guilty of a crime for refusing to do that which previous to its enactment was justifiable. (Penal Code, § 143, subd. 6.) , Full effect can be given to this act of 1904 by holding it prospective and not 'retrospective. A statute will never be so construed as to give it a retroactive effect when it is capable of any other construction. (New York & Oswego M. R. R. Co. v. Van Horn, 57 N. Y. 473; United States v. Heth, 3 Cranch, 399;
If I am right in the conclusion that the statute of 1904 does not have a retroactive effect, then the relator was justified in refusing to answer the questions which were put to him.
For these reasons I think the writ should be sustained and the relator discharged.
Dissenting Opinion
The authority of the Legislature by granting full immunity from prosecution, to require a witness to testify, even to the commission of a crime by himself, where the facts concerning which the inquiry is made arise subsequent to the enactment of the law, is beyond question. The facts concerning which the relator refused to testify occurred prior to the enactment .of the law granting immunity from prosecution. Assuming that it was competent for the Legislature to grant immunity from prosecution as to crimes previously committed, and to compel a witness to disclose facts that may show or tend to show that he committed a crime before the enactment of the statute granting such immunity — questions not free from doubt — we come to the question as to whether the statute granting immunity and requiring witnesses to testify indicates a legislative intent that it should apply to past as well as to future crimes. The general rule is that a statute relating to evidence or matters of procedure merely affects pending actions and proceedings as well as
. The language employed does not indicate a legislative intent to grant immunity for crimes already committed, or that the amendment should apply to inquiries concerning crimes committed before its enactment. If we were to take judicial notice of the origin of this amendment and of the public hearings thereon before the committees of the Legislature, it might be inferred that the author of the amendment and many legislators intended that it should have a retroactive effect, but the language employed does not expressly so declare, nor does it necessarily indicate such intent, and it may well be that many members of both branches of the Legislature voted for the measure in the belief that it would be given effect prospectively only. The question presented to us is neither one of evidence nor of procedure. Undoubtedly, neither party to a civil action or criminal prosecution could require the exclusion of evidence merely because at the time of the transaction under consideration such evidence would not be competent under the law as it then existed, but was rendered competent by subsequent statute. Here the objection is taken by the witness who claims that, inasmuch as he could not have been ■ required to answer these questions at the time to which the inquiries relate, it was not competent for the Legislature to thereafter enact a law granting him immunity and requiring him to disclose the facts, and that, even if competent, the act does not
These views lead to the conclusion that the writ should be sustained and the relator discharged.
Writ dismissed and proceedings affirmed, with costs.
Concurrence Opinion
I concur in the result of Mr. Justice Ingraham’s opinion, on the ground that the act of 1904, amending section 342 of the Penal Code, relates to evidence. It is conceded that a statute relating te evidence or matters of procedure only affects pending actions as well as those brought subsequently to the passage of such a statute. The personal right of the witness here is to be protected from prosecution, and he is abundantly protected by the amendment of 1904. I agree with Mr. justice Ingraham in his view of the character of this amendment,