*1 board, $10,000 year. She “Go per simply says limit, you goes but when pass appropriation $4000 as you go up.” down The is reversed with judgment
The auditor was right. the district court to discharge directions to writ. Young Justice and Mr. Justice Knous dissent. Mr. Mr. Otto Bock not Justice participating. 14,461.
No. People v. Clifford. (98 272) [2d] P. Rehearing January 8, 1939. Decided November denied *2 Mr. John H. Mr. Arthur F. Mr. Carroll, Zarlengo, Byron G. Rogers, Attorney General, Mr. Reid Williams, Assistant, for the people. Philip
Mr. for defendant Hornbein, in error. *3 En Banc.
Mr. Justice Knous delivered the of the court. opinion section 500, Under A., ’35 C. chapter S. providing in certain situations in criminal cases a of writ error shall lie on behalf of the the here latter people, seek a review of the decision of the trial court quashing an information filed therein the defendant against error, to whom shall we hereinafter refer as the defendant. T he information to and purported charge bribery an to attempt bribe a member the Thirty-First Gen eral Assembly the medium of through intoxicating liquor him the furnished defendant. In allegedly so far as assigned, error the pertinent defendant’s verified fundamentally is quash, grounded upon contention that the information was based evidence upon which defendant involuntarily and without warning was to a give before required grand jury recently sitting City County Denver, at time, which although to he was him, unknown defendant claims suspected whereby he asserts information, named in the the crime 18 of in section contained inhibition the constitutional the effect Colorado, to II of Constitution article testify against compelled him- person to no be shall conceded that case, violated. It is in a criminal self during testified, the time when called any refusing to answer privilege of did not claim ground an- propounded that his questions on the any object might him or incriminate swers tend to argues, below, as he did He, however, basis whatsoever. provision interpretation of the constitutional that a fair privilege upon based, it is which and the common-law may subjected person holding requires not be that a people inquisition a or called as witness primary object judicial inquiry de- for its which has given guilt offense. or innocence of a termination of principle is stated defendant relies which the People Bermel, him in most in the form favorable language: following 524, 525, N. Y. S. general applicable of de- to the examination “The rule being grand jury is there this: If before fendants conducted general investigation into affairs and con- any particular public, private or at in- ditions aimed are individuals, dividual or witnesses grand jury making investiga- before the and sworn refusing may privilege tion, witness claim might any question tend to incriminate answer compelled He cannot he cannot to answer. him, and against compelled be a himself as to the witness *4 any investigation crime or hear- commission of a before * * * ing recognized If the such law. witness investigation, general him, not aimed at fails claim right, privilege testimony may or his constitutional against him, or even be the be used basis an indict- investigation hand, where, ment. But on the other grand against jury proceeding is a him, or, before being ostensibly general investigation, is, fact, in as proceeding evidence, a and shown the circumstances 320 him, right then the defendant’s constitutional
against if he before the grand jury, violated be subpoenaed and he no claim of sworn makes though questioned, or stated, if privilege Briefly person exemption. witness, is a mere he must claim testifying privilege him, on the ground that his will incriminate answers whereas, if he be fact the party proceeded against, he cannot sworn, and even though * * * no claim privilege. party testifying may, fact, defendant or the party against, proceeded and not mere witness, he be under ar although rest or openly with the charged crime or proceeded in name. The title of cannot de against proceeding termine constitutional is one of rights, protection substance and not form. If examined be person at, grand fore the be in fact the one aimed jury sought for, crime, the title of the charged with pro cannot make his ceeding examination There is legal.” an adherence to this distinction in the cases: following v. Gillette, People 665, 133; 126 Div. 111 N. Y. S. App. ex rel. v. People Davy, 598, 105 Div. 94 N. Y. App. S. Hitchcock, Counselman v. 1037; 547, 142 U. 12 S. Sup. 195, Ct. 35 v. 1110; L. Ed. Singer, 18 People Abb. N. C. (N. Y.) 96; v. People Haines, State v. 55; 1 N. Y. S. Froiseth, 16 State Gardner, v. 296; 130, Minn. 88 Minn. 92 State v. 529; N. W. Sly, D. 162, 113; 63 S. 257 N. W. State v. Corteau, 433, 198 Minn. 270 144. Also N. W. cited as supporting defendant’s contention are: State v. Naughton, 221 v. Rixon, 398, Mo. State 53; 120 S. W. 573, Minn. 231 N. 217,W. L. United States 1501; 68 A. R. v. Edgerton, 347; 80 Fed. and as to persons custody Boone v. People, 440, 148 Ill. 36 N. E. Taylor 99, Commonwealth, Ky. S. W. An (2d) 140. exhaustive discussion of the subject will be found Wigmore Evidence (2d vol. ed.), §§2250 from self Immunity incrimination is a privilege immovably fixed in our Constitution. The existence of is one of privilege outstanding distinctive
321 system jurisprudence and the common-law features liberty citi protections of the highest the to one the been, democracy. Always have the courts of a free zens privilege. they preserving the be, zealous should and give ought doing, they it more however, not In so rationally respected significance. is its It than due Wig blindly worshipped fetish. as a merits, for its not (4). (2d ed.), §2251 of the au Some more on Evidence subject may justly criti above cited thorities supra, Wigmore, paragraph 2251, cism contained in under the in recent courts the effect that guise times a few reasoning spirit interpretation, of im in a privi plicit application favor, of the have extended the lege “beyond previous to be in its limits as almost certainly defy However, credible, common sense.” necessary appearing, the for reasons later it is not attempt we here rule theorem on to announce or subject, necessity depends upon largely the which the disposing mat case, circumstances each the theory proceed upon general ter before us we shall promulgated by upon reliance is the authorities placed by disapproving approving defendant, without or pronouncements. the ultimate soundness of their grounds As obvious, the consideration of required not asserted the motion attention to matters premise disclosed information itself. On quash objection a not lie does will where appear information, or not arise face people passing upon erred in contend that trial court sufficiency legality, competency of the evidence grand jury. quite or before the It is true that adduced dinarily quash a motion to an information can be record and apparent granted only for defects p. L., J., 200, 14 R. §43; for extraneous facts. C. C. not general p. §376. Likewise, it is the rule that the 802, inquire there whether was sufficient evi court will grand jury upon which to find the in dence before p. p. §385. L., §49; J., R. C. 31 C. dictment. *6 that However, does not the motion before us question suf amply the jury evidence to the was presented grand indictment, or, to an if devel lawfully ficient warrant information, otherwise, of an filing the justify oped but rights defendant therein claims his constitutional that were invaded of his called and by very the fact being of his first compelled being without advised testify privilege being against self incrimination and without informed that commit at the time he of was suspected y the ting offense in the informa charged subsequentl tion. Thus the illegality of the principally information is charged, and questions com relating legality evidence as relating to its admissibility of the petency the before grand or in of the jury trial subsequent are not directly involved. The evidence is only in pertinent whether, consideration determing under the disclosed, circumstances the defendant’s con stitutional Al rights were and not violated further. though con differing the considerably upon principles trolling determination, ultimate the courts generally are in accord with the the con proposition ground stitutional suggested the motion an excep tion to rule, orthodox the defendant challenge may validity an indictment or ad limine. information State v. Naughton, Smith, State v. supra; 238, 56 S. D. v. Froiseth, State 240; 228 W. supra. N. In jurisdic some this may tions raised question the motion to Smith, State Bermel, v. v. supra; People supra; quash. Gardner, State v. supra. In others has been held that is the abatement method plea proper present for v. Naughton, State, State Burke issue. supra; v. ing State 644; 104 Duncan, v. 220, Ohio St. 135 N. E. 364, 63 Vt. Atl. Notwithstanding, all au nearly agree thorities that whether raised by motion or plea, contention should considered as to its substance rather than its form. In People Court, District 83, it Colo. held that was provisions 1, of section ’79, S. L. section page 48, ’35 chapter A., C. S. quashed because effect no indictment shall be jury, grand disqualification member prevent ex- quashing for indictments does not impaneling of a irregularities in the trinsic errors validity pro- directly go jury grand which irregularities “If ceeding. we said: connection In that occurring, proceedings, wherever such invalidate which apt time of the court the attention are called to they appropriate considered. It must be manner, in an questions certainly that the never intended applica- support of their case, raise the relators respondent judge respect to the action of the tion, with grand jury, impaneling an in- *7 be raised if cannot in by court returned; or reviewed dictment should upon quash based error, in the event a motion to grounds con- overruled and a trial and should be these viction follow.” of the
For the reasons indicated we are opinion in this case the trial court committed no entertaining quash. in the defendant’s motion to error every pre proceeding of this character
In a indulged sumption in of the favor view must grand proceeded legiti jury prosecuting officers and the good supra. mately Smith, Like in State v. and faith. proceedings grand jury regularity of the of the wise presumed. p. §383. J., 808, 31 C. Also the bur is to be raising ques is on the defendant the constitutional den having reference his been tion with grand jury before the examined as a witness to show affirmatively called, that at the time he was in truth and grand jury engaged investigation fact, in the guilt his innocence of a criminal offense. or State v. grounds supra. assigned quashing, Smith, for if by supported by record, not established must be dis by evidence introduced or offered tinct accused. 31 supra. p. light procedural §392, In the J., 814, of these C. and the considerations circumstance that the burden of proof in connection therewith can never shift to the people, it seem certain would that when a motion of to be the course by
this character
is filed
it must
by
attorney
resisting
district
adopted
ad-
rest
He
not file
in his discretion.
need
a written
or
Peckham
People,
mission
denial
the motion.
422;
Colo.
75 Pac.
State v.
La. Ann.
Joseph,
thinks
12 So.
Of
if
course he
the situation
may,
so
controvert
requires,
affidavits,
file coun-
supporting
ter
or
affidavits
introduce evidence
relating
ques-
tions raised
before
In
case
quash.
us the district
instance,
in the
filed noth-
attorney
first
ing
depended
to defeat
solely upon argument
motion. Notwithstanding
that defendant
in apparent
recognition of the procedural necessities above pointed
out, declared in the motion
“to
readiness
quash
prove
matters
herein
things
alleged by testi-
mony,” when the motion came on for
no evi-
hearing
dence whatsoever
thereof
support
was introduced.
Upon
completion
the trial
took
argument
court
the matter under advisement
and subsequently,
that no
premise
denial
the averments
of defend-
ant’s motion had
been
the district
attorney,
filed
a written opinion, subject
to mentioned conditions here-
inafter to be discussed, concluded that the motion should
be sustained.
In
on the
proceeding
indicated adopted
premise,
the trial court erred.
In the
has
first
place,
been mentioned,
the district attorney was not required
*8
to plead to the motion and his failure
so
do did
amount
to an
of
admission
the truth of the allegations
of the motion. Peckham
People,
In this
supra.
con-
nection, as
seen,
we have
it was the
of the defend-
duty
ant to sustain the motion by
The evi-
competent proof.
dence relied
upon
show matters de hors the
in
record
of a
support
motion to quash must be other
the
than
of
affidavit
verification to the motion, which
the
was
sole
offered in the
support
case at
J.,
bar. 31 C.
p.
§393, citing Mamaux v. United States,
816;
264 Fed.
Franklin v.
State,
Ark.
S.
Secondly, without of considering sufficiency proof, none justify since the admission support as evidence offered, it was insufficient was for be considered position, if it could even defendant’s that upon defend- purpose. the authorities Under invalidity immunity relies, ant his constitutional depends resulting violation, its from of the information guilt upon criminal his or innocence the fact that jury inquiry. grand In subject of the offense is the true relating Sly, supra, Doe” to a “John the case of State v. investigation upon magistrate, which defendant before a pro- strongly course, the John Doe is “Of relies, it said: good proper may ceeding validly employed faith may, investigation grand jury just to ascertain case, as a and, so, if who has committed a crime has been whether happens, that fact, if it it. In case the committed such person subsequently the interrogated, accused was proceeding be- Doe or the John either on grand jury, the indictment or vitiate fore the does not question case the As in the Smith information. we said good therefore, was, It in- and of faith.” one of fact allege establishing facts defendant to cumbent jury grand proceeding, called, he at time was guilt inquiry or innocence. an into in truth was only allegations reference to this in the motion with expressions subject in the nature are either personal in the form of con- or belief of defendant evidently nothing. establish clusions which arguments the trial After the conclusion quash sus the motion to would be court announced that that it has evi tained, “unless the state is able show dence not derived from the examination of defend tending that the knew ant, or affidavit to show suspected himself or or should have known that being was investigated examination,” time at the gave attorney proceed. time the district For rea given procedure improper, as, sons heretofore record, the state of the was the trial court’s con under compliance However, clusion on the motion itself. *9 the district with the condition the court expressed by attorney filed as a demurrer designated what was traverse him. The by of the motion verified which was demurrer mo- of the merely challenged sufficiency and, tion course, not have the effect of admit- could ting pleaded argues conclusions. The defendant now the deficiencies in his which we have mentioned were information quash cured supplied the district attorney his affidavit. In this connection the traverse stated that to the prior defendant’s appear- ance the grand before several jury, witnesses had testi- fied “with reference association, [liquor] lobbying * * * activity, and defendant, employment con- * * * nection with dealers legislation affecting liquor * * and members *; of the Thirty-First Assembly General that as a result of the of said witnesses testimony jury the defendant him con- inquire cerning extent of his with said employment liquor dealers in connection with legislative matters.” In our opinion this statement of the district attorney did not admit at grand the defendant jury aiming in the investigation or that he was called before the for grand jury the sole evidence purpose securing which indict him. Rather a implies general investi- gation lobby, dealer’s not directed at liquor any particular individuals, individual or in connection with which the defendant aas witness and not appeared as a defendant, suspected party and that his at status time he testified was that of witness rather than party. Nor did the method and manner of interrogation before the as grand jury, from the appears transcript defendant’s testimony traverse, filed with people’s otherwise. impute No occasion here arises for consider- ing questions relating admissibility sworn tes- timony given by witness in judicial investigation sought be used against him subse- offense, trial for a criminal quent was the situation in Tuttle 33 Colo. People, Pac. nor in
327 questions necessary on proceeding comment is it this voluntary involuntary of such nature or the or of waiver Rogers recently fully testimony, in the case discussed (2d) People, P. Colo. ruling quash appears, in- As wrong, judgment is reversed. formation and the was Justice Bakke Bock dissent. Justice Mr. Mr. dissenting. Mr. Justice Bakke swallow
I of the court dissent. This is another case glance ing straining gnat. at the A a bare a camel and at question important record discloses that the one — and only important is whether one involved — was right Consti defendant had been denied his under says, compelled person tution, testify “No which against shall be The two criminal case.”
himself in a present testified, and that defendant facts are obvious compulsion subpoena, is a that he did so under meaning particular provision of the of this within legerdemain, juridical Stripped that Constitution. all there is this case. opinion Wig- language used
The court’s contains that the effect more in his work on evidence to worshipped guarantee “not be constitutional should aptly blindly distinguished ex- as a fetish.” writer pressed himself. A fetish was a form of idol with they long as of West Africa and that so tribes believed possession it harm come to one had “no could though lawyer, Defendant, con- him.” even a had some long rights, possessed he stitutional this and so as was justified assuming he that “no one harm come to him.” would opinion disposes question The court’s of this vital as rule, simply juggled
if it a evidence that can were hearsay Wigmore recognizes like the rule. around its says importance something that it when “has more ordinary than the interest of rule of a evidence.” The always recognized privilege, it law it and would a fun- it
seem, history, its considering approximates accorded freely Its should be right. damental protection trial. time a criminal during without quibble any to remember detail, Without discourse in it is well In the history. old as recorded privilege is as Code of “If a man Hammurabi this form: appears make a false man, accusation a ban against putting him, and it, cannot then the accuser shall prove *11 be put death.” In the ancient criminal code Jewish it in these appears words: “Not is self-condemna- only tion never extorted from the means of by but no torture, is ever made to lead him on to attempt self Moreover, incrimination. voluntary a confession on is not in evidence, therefore not part admitted him, to convict number competent unless a of wit- legal nesses minutely corroborate his self-accusation.” Men- delsohn, “Criminal of the Ancient He- Jurisprudence brews,” page 133, I, from of. volume 271 quoted page “The Trial of Jesus” by (Italics Chandler. are mine.)
The maxim “nemo accusare” (no tenetur seipsum man can be to criminate so compelled himself) perme- ated the field of Roman criminal it that jurisprudence could have well been described as its The keystone. history of the set subsequent privilege fully forth by Wigmore.
The that it fact is preserved.in the United States Con- and in stitution the Constitutions of all the states of the Union, with the possible two, of one or exception indi- cates the regard with which it was held our fore- fathers. no Consequently, good be purpose would served by dwelling longer on the involved. philosophy
The court’s opinion People Bermel, v. from quotes 128 S. 524, N. Y. calls what the distinction (It be may noted here that the York New Court of Appeals in case of People ex rel. Lewisohn O’Brien, v. 176 N. Y. 253, 353, 68 N. E. follows the rule in the Counselman case, infra), and there says that is an adherence to this in the case of Counselman distinction Hitchcock, v. 142 sig- Sup. The most 195, Ed. 1110. Ct. 35 L. 547, U. S. opinion appearing the Coun- nificant statement recognized as the authorities selman case and impossible that the “It is of that case is follows: law only meaning provision that can of the constitutional against compelled person a shall not be be a witness prosecution against It in a criminal himself. himself cases; cover such it is not limited would doubtless but person object should to them. The insure that a was to compelled, acting in- when as witness testimony might give vestigation, tend to show which a crime.” he himself had committed only I have this statement modification Walker, 161 case of Brown find is in the been able to Sup. that modi- 819, 40 L. Ed. Ct. U. S. upon predicated a federal statute fication was immunity subsequent complete gave from the defendant anything may prosecution said at have based investigation. preliminary statute There is no such Colorado. point there is that relied for reversal
The other *12 support of by in was no defendant evidence introduced hearing quash, In that motion. the on at opinion, by quoted court, its addition to the matter the §393): (p. 815, J., from 31 C. we find this statement sufficiency question of law. is a “The of the affidavits they In as true.” Unless controverted are to be taken attorney filed a demurrer the district this case motion. elementary admits a demurrer
It
that
is
they
plead-
opposing contentions, if
are well
of the
truth
opinion
did
that the court
concedes
ed, and the court’s
certainly
entertaining
is
motion,
err in
Assuming
validity.
that evidence
of its
an admission
necessary,
support
the trial court
motion
of the
was
by
judicially
its
the facts disclosed
own
notice
could
legitimately
they
“produced and
are
records where
Downing
brought
Howlett,
to the court’s attention.”
App. 291, 293,
“Appeals this kind this further present anomaly. The defendant has been a as acquitted, goes about free man. Yet if the successful, state’s is appeal public record is of made the fact in the opinion highest judicial tribunal of the state there were certain errors in the lower court which probably prevented from being brought justice. In fact he is free a man. But the view of the court he appellate ought not be.” Criminal America, Appeals Les- ter B. Orfield, page
In court, cause in this manner disposing me, seems to is with the trifling defendant’s constitu- tional It ill us, tri- privilege. becomes as people’s bunal last resort to so of it. This dispose attempt carry weight so profound constitutional guar- — antee as freedom from self incrimination right — free men as old the pyramids across the abyss the “thumbscrew rack” on the tight rope technical pleading fraught with such dire potentially results as to make believers in a government of laws shudder.
I one yield to no in my insistence upon integrity office, public but out the ferreting culprits, I also in- sist that should be done in a manner which recognizes the constitutional rights all, be they kings, potentates, saints or felons.