128 N.Y.S. 1093 | New York Court of General Session of the Peace | 1911
The defendant demurs to an indictment purporting to charge him with a felony in the violation of a provision contained in subdivision 3 of section 290 of chapter 374 of the Laws of 1910, commonly called the Callan Law. The demurrant challenges the constitutionality of such provision, and, moreover, contends that the allegations in the indictment fail to allege and negative a violation of such law.
These words form part of a new article in relation to motor vehicles inserted by way of amendment to the Highway Law. Section 295 of article 11 of that law (Laws of 1909, chap. 30, being chapter 25 of the Consolidated Laws), repealed by the law now challenged as to constitutionality, provided that “ in case of accident to a person or property on the public highway, due to the operation thereon of a motor vehicle, the person operating such vehicle shall stop, and, upon request of a person injured or any person present, give such person his name and address, and if not the owner, the name and address of such owner,” while subdivision 307 of the same law made a violation of this provision a misdemeanor.
These provisions followed by a few years the extensive use of motor vehicles and first appeared in 1904. Laws of 1904, chap. 538. Similar laws were enacted at about the same time in Maine, New Jersey, Michigan, Florida, California and other States.
The provision under consideration is limited by its context to injuries inflicted upon public highways and by proper construction to such as are caused directly or indirectly by the motor vehicle operated.
The constitutional provision invoked by the demurrant forms part of subdivision 6 of article I of the Constitution of this State, commonly called the Bill of Bights. It reads, “nor
Where the immunity from prosecution afforded by statute is not coextensive with the constitutional provision, a person may decline to make when asked what he, in good faith, believes may become self-accusatory disclosures, whether oral or documentary, sworn or unsworn, and although the demand that he make the same is preferred before even the initiation of a purely collateral preliminary inquiry. In aid of such declination he may lawfully move to set aside a subpoena served, or disobey it and contest its validity in proceedings to punish him as for contempt. He may, if a party, decline to be sworn or affirmed, and, whether a party or mere witness,
The word “ witness ” as used in the constitutional provision, although never judicially defined, has been applied in the cases to one potentially able to give testimony, to one called upon to testify and to one required to furnish documentary proof.
The phrase “ in any criminal case ” as so used has been judicially applied to proceedings under the executive, legislative or judicial powers of government directed against the person invoking the provision, or against co-offenders with such person, or against unrelated third parties, to such as are preliminary, collateral or independent, and both to such as are pending and not pending at the time of the assertion of the privilege. With respect to subject-matter, disclosures protected against include not merely admissions per se evidencing criminality, but also statements by possibility forming a link in what might be a chain of inculpating evidence and to disclosures which, apart from the fact disclosed, might reveal to the inquirer independent sources of information tending to establish the guilt of the person invoking the constitutional provision. In a word, the phrase “ nor shall he be compelled in any criminal case to be a witness against himself ” has been adjudicated to mean that no man shall be compelled to an utterance of any fact by word or pen which utterance might then or afterward be used as evidence against him in proceedings then pending or afterward to be brought.
A similar provision applicable to proceedings in the Federal courts is found in the Fifth Amendment to the Constitu-. tian of the United States.
While reference is made to six illustrative cases, this decision rests upon analogy rather than precedent, as no case has adjudicated upon the constitutionality of the law which the people charge the defendant violated.
In 1887 one Sharp was required to appear and give testimony before a legislative committee charged by resolution
Sharp was thereafter indicted with others for giving money to a member of such council with intent to influence him in respect to the exercise of his powers as such. Upon his trial on this charge there was given in evidence against him, over his objection and exception, the testimony given by him before the investigating committee. It was urged in support of a judgment of conviction that such testimony was properly received because voluntarily given, and that in the giving of it the defendant had waived his privilege. The defendant-appellant contended that his disclosures before the Senate Committee were privileged; that they were not voluntary, and that he was protected from prosecution by various immunity statutes, including section 79 of the then Penal Code. In discussing the scope of the constitutional provision, Danforth, J., in delivering the opinion of the court, commented upon the fact that where a statutory indemnity is relied upon as validating a provision making self-accusation compulsory the indemnity must be as broad as the constitutional exemption, and discussed the extent of such exemption by commenting upon and reasserting the rule stated in the Hackley case. People v. Sharp, 107 N. Y. 427.
In 1894 one Taylor was convicted of a criminal contempt in refusing to answer questions while testifying before a grand jury, and, being committed for such contempt, obtained a writ of certiorari. This being dismissed by the General Term of the Supreme Court of the Fourth Department, he appealed to the Court of Appeals on the ground, among others, that he declined to answer questions relating to alleged acts of his which might be crimes, and that he was protected by the constitutional provision referred to. The Court of Appeals, O’Brien, J., delivering the opinion, held among other things, that the constitutional and statutory provisions (U. S.
In 1901 a liquor tax certificate held by one Cargill was revoked and cancelled because the defendant within the time allowed by law had not interposed a verified answer to the petition for its revocation denying that he had violated the law by selling on Sunday. In commenting upon the unconstitutionality of the statute requiring the interposition of such an answer the Court of Appeals, by O’Brien, J., said: “ No law can be valid which directly or indirectly compels a party to accuse or incriminate himself or to testify by affidavit or otherwise with respect to his guilt or innocence. In every case when he elects to remain silent with respect to any charge involving unlawful acts which are criminal or subject him to a penalty or forfeiture, that is a constitutional privilege which the legislature may not invade. The courts have insisted upon giving to the constitutional provision a construction broad and liberal enough to permit a citizen to remain entirely silent with respect to the truth or falsity of any criminal charge against him if he so elects, and his right to refuse to verify a pleading is as clearly within the privilege as his right to refuse to testify. The constitutional immunity from every species of incrimination may be as effectually violated by a law which compels a person to plead or deny upon oath any
In 1903 one Lewisohn was arrested for criminal contempt, of court in declining to answer, upon the ground that his answers might tend to incriminate him, certain questions put to him as a witness in a proceeding in the Court of Special Sessions against one Canfield, who was charged with conducting a gambling house. After he had declined to answer and before his arrest, the district attorney promised him immunity and brought to his attention section 342 of the Penal Code. Being adjudged in contempt he obtained writs of habeas corpus and certiorari which, after a hearing, were dismissed and the order of dismissal reversed by the Appellate Division. Thereupon the people appealed to the Court of Appeals. The opinion of that court, written by Bartlett, J., discussed the constitutional exemption as measured by the immunity given by section 342 of the Penal Code, and after commenting and quoting at length from People ex rel. Hackley, supra, held that certain limitations placed by that case upon the extent of the constitutional exemption were at variance with the construction placed on the Fifth Amendment of the Constitution of the United States by the Supreme Court of the United States in cases cited in the opinion, and thereupon adopted the larger and broader meaning ascribed to the constitutional provision in the United States courts, and so adopting it sustained the order which discharged the relator. People ex rel. Lewisohn v. O’Brien, 176 N. Y. 253.
In 1908 one Ferguson, a member of a firm of stockbrokers, was ordered by a representative of the State Comptroller to exhibit to such representative certain of Ferguson’s private books and papers. The demand was made and sought to be
These provisions were in aid of the enforcement of the collection of the tax on transfers of stock imposed by chapter 241 of the Laws of 1905. The payment of such tax was to be evidenced by adhesive stamps. The failure to pay such tax by affixing stamps as provided was made a misdemeanor. Tax Law, §, 317.
The relator, Ferguson, having been taken into custody in accordance with the provisions of the Tax Law as for a violation thereof sued out a writ of habeas corpus, upon which he demanded his discharge on the ground among others that the statute was unconstitutional in that it sought to make him a witness against himself in a criminal case.
Judge Hiscock, in delivering the opinion of the Court of Appeals, after stating in substance that the requirement for the keeping of the public book of account provided for by the statute was not violative of the Constitution, justified the refusal of the relator to produce his private books, papers and memoranda on the reasoning of previous decisions, say
It will be seen that in the Ferguson case it was invoked anticipatory to any prosecution against the relator; that in the Hackley and Taylor cases it was invoked during the pendency of a preliminary inquiry; that in the Cargill case it was invoked in connection with a special proceeding, and in the Sharp and Lewisohn cases during the pendency of criminal actions. That in the Hackley, Taylor and Lewisohn cases it was invoked by one under subpoena; that in the Cargill and Ferguson cases it was invoked by one not under subpoena; that in the Hackley case it was unsuccessfully invoked because of what was held to be adequate statutory immunity, and that
At the time of the occurrence set forth in the indictment and at the time when the statute challenged as to constitutionality required a statement from the defendant, no prosecution had been begun against the defendant, in which respect the defendant’s case is similar to the Ferguson case and in the defendant’s case, like the case of Taylor, Cargill and Ferguson, there is concededly no statute affording him immunity from prosecution based upon a criminality which might be evidenced in whole or part by the statement required from him, and his case differs from the cases cited alone in the circumstance that the statement which this defendant was required to make was to be oral and unsworn. In the cases cited something under oath was sought to be elicited, save in the Ferguson case, where incriminatory unsworn documentary evidence was required to be produced.
As a test of the constitutionality of a law requiring a person to say or produce something, considered in the light of the provision exempting from self-accusation, is whether that something required to be said or produced is receivable in evidence, it is immaterial whether that demanded is an oral statement provable as an admission against interest or a document receivable in evidence for like reason.
In the statute now under consideration a person, after the happening of an event, is required as stated to make an oral unsworn statement. The event is one upon which the
The circumstance that the statute also requires the statement to be made where the injury inflicted is due to accident—that is to say without conscious culpability—and that, therefore, it may conceivably be required where no criminal liability attaches to the defendant from the occurrence, does not make the statute constitutional, for it is sufficient to render it obnoxious to the constitutional provision that the statement required to be made may under some circumstances be self-accusatory or tend to establish a criminal liability or subject the maker to criminal prosecution. It is not necessary to its unconstitutionality that it should inevitably have this effect.
The first count in the indictment alleges that the injuries inflicted by the occurrence respecting which the defendant’s statement was required, were occasioned by the defendant’s culpability. As the demurrer admits this, among other facts competently alleged, it follows that in the case at bar the statement would have been required from the defendant because of his conscious culpability, and, therefore, the making of the statement would have furnished not merely evidence
It is elementary that when a person is injured in person or property and such injury appears to have been caused by the act or omission of another, the circumstances as ascertained attending the infliction of such injury may indicate a civil and possibly also a criminal liability on the part of such other because of such other’s apparent connection with its infliction. Where for the reason that they indicate criminal liability a criminal action is begun the public prosecutor must prove as prerequisites to a lawful conviction, first, the identity of the person prosecuted with the person causing the injury, and, second, the latter’s criminal culpability with, respect to the same. The first, like any other relevant fact, may be proved by the admission of the person prosecuted. When so proved, such fact becomes a link in the chain of evidence against him. Thus a person is injured upon a public highway and thereafter dies from the effects of such injury. The injury causing death results from the violent contact of a motor vehicle either directly or indirectly with the body of the person killed. The circumstances discovered by the public authorities indicate that such contact was due either to some act or some culpable negligence on the part of the person operating the motor, vehicle. The question arises, Who was that person ? and it thereupon transpires that under the penalties of the challenged statute such person has said to a police officer in the vicinity of the place where the injury was inflicted, not an eye-witness to the occurrence: “ I am the man; I operated the motor vehicle which caused the injury; my address is such a street and such a number, and this is my operator’s license number.”
The admission so made as an evidentiary fact is testified
It follows that the man making the statement, whether such statement import conscious culpability or merely his connection with the occurrence, has been compelled, in the absence of any statutory immunity against prosecution, to be a witness against himself in a criminal case. Such was the nature of the statement required from this demurrant under penalty of conviction of felony should he omit to make it. He has omitted to accuse himself, and the indictment assailed is the pleading initiating the criminal action for his conviction of felony for such omission.
These considerations lead to the conclusion that while the facts in the case at bar are dissimilar from those in the cases cited, they show, if anything, a more obvious infraction of the constitutional provision. In reaching this conclusion the extent of the police power of the State is recognized. The right under it to enact as well-considered regulations for the public safety in connection with the operation of motor vehicles upon public highways license and other requirements which have for their object the identification of those violating the Motor Vehicle Law is conceded. People v. MacWilliams, 96 App. Div. 176. It is one thing to require operators of motor vehicles to carry identifying indicia before such persons have broken the law, and quite another to demand either that they
Having reached the conclusion that the statute under which the indictment is found -is repugnant to section 6 of article I of the Constitution of the State and that for this reason the amended demurrer must he sustained, it becomes unnecessary to consider the question as to whether the indictment sufficiently alleges the offense sought to he charged.
Demurrer sustained.