80 N.Y.S. 816 | N.Y. App. Div. | 1903
Lead Opinion
No question relating to the regularity of the practice upon the issue of the writ of habeas corpus and certiorari is presented. The prim cipal question arising on the appeal is whether the information filed against the relator on which the warrant was issued discloses facts showing the commission of a crime by him (People ex rel. Bungart v. Wells, 57 App. Div. 140), and this depends upon whether he was. justified in refusing to answer the questions on the ground of the* privilege conferred by section 6 of article 1 of the State Constitution. If not, the question was both relevant, material and proper, and his refusal to answer, assuming that the information filed against. Canfield gave the magistrate jurisdiction, authorized his punishment, by the magistrate under section 619 of the Code of Criminal Procedure “ as for a criminal contempt, in the manner provided in the-Code of Civil Procedure,” and subjected him to a criminal proseen
It is contended in behalf of the People that this section affords the relator the full measure of immunity guaranteed by said section 6 of article 1 of the State Constitution, which provides, among other things, that “no person shall be subject to be twice put in jeopardy for the same offense; nor shall he be compelled in any criminal case-to be a witness against himself; nor be deprived of life, liberty or property without due process of law; nor shall private property be taken for public use without just compensation.” The relator, on the other hand, contends that, if he shall be required to testify that he visited this alleged gambling house and to answer other questions, relating to his visits there and to what transpired, information will be disclosed which will afford a basis for a eriminakproseeution against, him for some of the crimes embraced in said chapter 9 of title 10 of the Penal Code, even though his evidence cannot be introduced against him on the-trial. The People rely on the case of People ex rel. Hackley v. Kelly (24 N. Y, 74), which, if it remains in full force as an authority for all that was decided, would undoubtedly be controlling, and under it the relator would not be excused from answering the questions, for it was there held that the provision of the State Constitution of 1846, which was precisely the same, did not protect a witness in a criminal prosecution against another from giving testimony
The court then construe the Counselman case and say concerning the decision: “ The court, sustaining the privilege contended for in behalf- of the Witness, held that the object of the constitutional provision was to insure that a person shall not be compelled when acting as a witness in any investigation, to give testimony which' may tend to show that he himself has committed a crime, and that its meaning was that a witness is protected from any compulsory disclosure of the circumstances of his offense, or the source from which, or the means by which, evidence of its commission,, or of his connection with it, may be obtained, or made effectual for his conviction, without using his answers as direct admissions against him. This conclusion was reached, although there is a general Federal' statute providing that in such cases the- testimony given by the witness at the investigation shall not be given in evidence against him, subsequently, in any civil or criminal proceeding. (U. S. R. S. § 860.) It seems that in such cases nothing short of absolute immunity from prosecution can take the place of the privilege by which the law affords protection to the witness.” We are, therefore, of opinion that the case of People ex rel. Hackley v. Kelly (supra) is no longer a controlling authority and that the doctrine of the Supreme Court of the United States should be followed. It necessarily follows that section 342 of the Penal Code is not sufficiently broad in
In the case at bar there is nothing to indicate bad faith on the part of the relator. He has manifested a willingness to answer any question relating to a period when the Statute of Limitations would-
Having reached the conclusion that the witness was privileged from answering, we deem it proper to base bur decision upon that, broad ground, inasmuch as a decision on that point is desired by both parties and goes to the real merits; and we refrain from, expressing any opinion on the other questions which would otherwise require consideration at our hands.
It follows, therefore, that the order should be reversed, the writs sustained and the relator discharged.
Van Brunt, P. J., and Ingraham, J., concurred; McLaughlin- and Hatch, JJ., dissented.
Conviction.
U. S. R. S. § 860—[Rep.
People ex rel. Hackley v. Kelly.
Dissenting Opinion
A justice of the Court of Special Sessions of the city of New-York, upon information laid before him to the effect that one Can-field had been, between the 1st day of January, 1901, and the 1st day of December, 1902, conducting a gambling house at No. 5 East Forty-fourth street, in said city, issued a subpoena addressed to the. relator, in obedience to which he attended before the justice, and,, after testifying that he knew Canfield, but had not been in the. premises referred .to prior to December, 1899, was asked the follow
I am unable to concur in that conclusion, first, because the question discussed in the prevailing opinion is not before us, and, second, if it were, the conclusion reached is in conflict with the decision of the Court of Appeals, which it is the duty of this court to follow.
The charge which was being investigated was that Canfield, during the time specified, had conducted a gambling house at the place named. The question asked, and which the relator refused to answer, was whether he had ever been in that house, and if it be assumed that his answers would have been in the affirmative, I do not see how it could be said that the same could, by any possibility, have tended to convict the defendant of a crime. In answer to this, it is suggested — not by counsel — that if the relator should be prosecuted for gambling at this place an important link in the chain of evidence on the part of th'e prosecution would be to show that he was present at the time he gambled. Of course, it goes without nay ing that he could not gamble unless he was present, but it might just as well be urged that answers, to questions of whether he had ever been in the city of New York, the State of New York or‘the United States would tend to incriminate him, as it can that the ■answers to the questions which were put to him would, and we take it no one would seriously contend, if such questions were asked, he should be excused from answering on the ground named. Whether a witness shall be excused from answering a question upon the ground that his answer' may tend to incriminate him always depends, as I understand the law, upon whether the court can see, upon all the facts then before it, not only that the privilege ■ claimed is made in
If, however, it be assumed that had answers been given to the questions the same would have tended to incriminate the relator, I am, nevertheless, of the opinion that he was not excused from testifying. To hold otherwise is to entirely disregard section 342 of the Penal Code. This section refers to gambling, and provides that “ no person shall be excused from giving testimony upon any investigation Or proceeding for a violation of this chapter upon the ground that such testimony would tend to convict him of a crime, but such testimony cannot be received against him upon any criminal investigation or proceeding.” But it is suggested that this section is in conflict with article 1, section 6, of the Constitution, which is that “ no person shall * * * be compelled in any criminal case to be a witness against himself.” The suggestion would require very serious consideration were it not for the fact that the Court of Appeals, in People ex rel. Hackley v. Kelly (24 N. Y. 74) held otherwise. The question presented in the PLaoTiley case was quite similar to this one. There thé relator had been committed for a contempt of court in refusing to answer questions put to him relating to a charge of bribery. His refusal was put upon the ground that the questions put to him tended to incriminate him, and the statute under which, it was sought to punish him for contempt by reason of such refusal was almost identical with section 342 of the Penal Code, herein-before quoted. There the statute (2 R. S. 683, § 14, added by Laxvs of 1853, chap. 539) provided that “ every person offending against either of the provisions of the preceding sections in this article shall be a competent witness against any other person so offending, and may be compelled to appear and give evidence before any magistrate or grand jury, or in any court, in the same manner as other persons, but the testimony so given shall not be used in any prosecu
Indeed, it is conceded in the prevailing opinion that this decision of the Court of Appeals is in point and decisive of the question here presented, unless the same has been overruled by that court, and the claim is made that it has, in People ex rel. Taylor v. Forbes (143 N. Y. 219). That case will be read in vain to find a suggestion in it that the court intended to overrule the Hackley case. On the contrary, the only reference to the HacTdey case in the opinion delivered is where the same is cited With approval. It is true there are expressions in the opinion in the Taylor case antagonistic to the views expressed in the opinion in the HacTdey case, but I cannot believe that the court of last resort in this State would overrule an important decision of its own, which had been recognized as the law of the State for upwards of thirty years, without saying so in express terms. Eot only this, but the question presented in the Taylor case was .radically different from the question presented in the HacTdey case. In the former the question determined was that where a witness stated that his answers might have a tendency to incriminate him, and it could be seen that the claim was made in good faith and that the answers to the questions might have a tendency to do what the witness claimed, then the court, in the absence of a statute preventing the use of his testimony, against him, was bound to excuse him from answering the questions. Here there is a statute, as already indicated, quite similar to the one under discussion in the HacTdey case. I do not think the HacTdey case has been overruled, and if I am correct in this, then it is the duty of this court to follow it.
Hatch, J., concurred.
Order reversed, writs sustained and relator discharged.