*1 obvious. inconsistency The total is Under RCW 6.12.080 out of the homestead selected the de- separate property ceased will to his heirs. Under RCW 11.52 the spouse go same homestead will to the go surviving spouse. stated,
For the reasons part dealing of RCW 11.52 and the probate repealed by RCW impliedly is entitled to the surviving spouse dispute homestead affirmed. herein. The trial court and is should be Hale, C.J., Finley, Rosellini, Hamilton, Hunter, JJ., Stafford, Utter, Brachtenbach, concur. 42707. En
[No. Banc. November 1973.] Petitioner, v. Charles O. The State of Washington, al., et Respondents. Carroll *2 T. Norman Bayley, Prosecuting Attorney, by Christopher K. for Maleng, Deputy, petitioner. Chief Andersen, Fleck & James Glein, Andersen, A.
Clinton, Basil Carney, Badley Smith, & L. Stephenson, Siqueland, Badley, Carroll, Rindal, Joel A. C. Caplinger Kennedy, & Rindal, Walthew, Warner, Keefe, Aaron, Thomp- Costello (cid:127)& son, and Thomas P. for Keefe, respondents. was convened in jury J. In grand
Hamilton, of for the brib- King County investigating possible purpose ery and officials. As a police among public result several indictments issued. such investigations, six in the instant matter were defendants-respondents1 .The to attend and did under oath be- subpoenaed upon advised, fore the Each was of: grand jury. testifying, (a) their purpose investigation, (b) right counsel, their remain silent. (c) right Kretchmar, McNeilly, Moore, William F. Frank C. Robert D. 1Albert Swindler, J. Ramon, and William Walsh. H. R. subsequently Each was Respondents indicted. were offending against charged nature of offenses joined corruption. in a All the laws pur- upon that, the indictments the basis motion to dismiss re- were 10.52.090, 9.18.080 and RCW suant to RCW statutory prosecution spectively afforded appearance before the result their jury concerning charged. court The trial offenses granted the indictments. The the motions and dismissed sought by this state review court.
Following argu- a consideration of the briefs and oral respondents, ments of this counsel the state and the affirming court issued an order trial order of court’s dismissal. forth We now set the rationale for the order affirmance. respective parties propound
The contentions of the three principal questions: (1) Do and RCW RCW 9.18.080 apply involved, statutes here *3 respondents’ testimony jury? (2) Must an testifying pursuant individual to such statutes first claim privilege against by guaranteed his self-incrimination, the fifth amendment to the Constitution, United States precedent receiving statutory immunity? condition (3) Do RCW 10.27.120 10.27.130, and RCW of investigatory 1971 criminal act to self-incrimi- grand jury proceedings, repeal nation in RCW 9.18.080 RCW 10.52.090? question
We answer the first in the affirmative and the questions negative. second and third in the premise privilege against from the that the startWe afforded the fifth amendment to the self-incrimination applicable proceed Constitution is to state States United Malloy Hogan, ings. 1, v. 378 12 2d 653, U.S. L. Ed. 84 S. adequacy grant (1964). And, of a state Ct. 1489 immunity prosecution must be tested the re quirements Amendment, Fifth which mandate that immunity scope grant of coextensive with the privilege against self-incrimination. Counselman Hitch- v.
112 (1892); 12 Ct. 195 1110, 35 L. Ed. S. cock, 547, 142 U.S. Murphy 52, 12 L. Ed. 2d Comm’n, 378 v. U.S. Waterfront Kastigar (1964); States, United 406 v. 678, 84 S. Ct. (1972). 212, 2d 92 Ct. 1653 32L. Ed. S. 441, U.S. Kastigar, instances in certain in statutes which
As noted exchange privi- immunity in for to a witness lege against authentic, historic have self-incrimination Anglo-American logical extent law, to the roots ” “ part fabric.’ of our constitutional have ‘become only points a number are there out that not court further immunity one or more extant, but also of federal statutes every in the state Union. are on the books such statutes Kastigar supra States, at 445-47. v. United statutory grants
Generally speaking,
of im-
two forms of
constitutionally
munity
upheld
sufficient
have been
scope
scope
square
Amendment
of the Fifth
with the
privilege against
forms have been
These
immunity,”
furnishing
i.e.,
“transactional
characterized as
any
prosecution
transaction,
from criminal
compelled to
thing
is
matter or
about which a witness
immunity,”
testify,
i.e.,
use
and derivative
“use
compelled
from the use of the
prose-
subsequent criminal
therefrom in a
evidence derived
40 L.
591,
Walker,
Brown v.
161 U.S.
cution
the witness.
(1896);
States, 350
v. United
819,
Ed.
Every any person offending against of the bribery compe- corruption relating or be a law tent to shall offending against not another shall witness so b.e testimony tending giving him- to criminate excused from self. 9.18.080.
RCW every provided in this act that a where it is In case giving tend- shall not be excused from witness ing person criminate himself, no be excused from to shall any testifying producing papers on the or documents or testimony may ground or tend to criminate sub- his ject penalty forfeiture; a or not be him to but he shall subjected penalty prosecuted to or or or forfeiture for any concerning thing action, matter on account which he shall so ing or testify, except perjury or offer- testimony. false evidence committed such (Italics ours.) RCW 10.52.090. apparent language
It is of RCW 9.18.080 applicable, legislative that, and RCW 10.52.090 when privilege against to intent was withdraw self-incrimina proceedings revolving relating tion criminal about laws to and to substitute in of that lieu immunity” distinguished full “transactional immunity.” scope from “use and derivative use The immunity thus afforded is broad and well within re quirements Kastigar of the Fifth Amendment. United supra. States, argues state, however,
The that RCW 9.18.080and RCW apply grand jury investigations. do not This (a) Investigatory contend sois because: the Criminal of 1971, Act special separate codified as 10.27, is a statutory grand jury proceedings scheme and is independent (b) of the Criminal 1909; and, Code of 10.27.120and RCW 10.27.1302restore to the witnesses con- 2“Any testify grand jury special called individual before a or inquiry judge, by principal, represented whether or if attorney appearing grand jury an special witness before the inquiry judge, must be told of his right representation by attorney Such an individual has a an obligations rights, grand jury advise him to his and duties before the special inquiry judge, right. and must be informed of this attorney may present during proceedings all attended his client granted pursuant unless has been to RCW 10.27.130. After may granted, has been such an individual leave the jury attorney.” room to confer with his RCW 10.27.120. any special proceedings inquiry before a judge, “If in refusal, person refuses, or indicates in advance a ground other kind on the that he evidence be incriminated *5 10.52.090 their and RCW 9.18.080 under RCW
templated
From these premises
against privilege
to
failing
that
the respondents
then asserts
the state
grand
the
before
privilege3
Amendment
their Fifth
claim
thereby
lost
and
waived that
voluntarily
privilege
jury
them.
accorded
have been
that
otherwise
might
with the state’s contentions.
agree
We cannot
Grand
accusatory bodies,
and
are of
juries,
early
investigatory
as
and of this
England
country.
in the common law
origin
1 and 2
Jury
(1968);
38 Am. Jur. 2d Grand
38 C.J.S.
§§
have been deemed to be and
They
Grand Juries
1 (1943).
§
of the court
them
part
calling
looked
as
constituent
upon
an
function in
session,
into
and as performing
important
law.
v.
Hitzelberger
the administration
criminal
Adami
State,
435,
To out its and accusatorial imposed by upon statutes, it the common law the a and grand jury necessity rely upon must look to and the laws by legisla- to crime as such have been the enacted eyes doing, portions ture. In so it cannot close to its subject criminal laws relevant to matter of the its investi- gations, proceed though and such relevant did not laws exist. legislature enacting
The
in
the Criminal Investi
gatory
specifically repealed
ofAct
1971
It
some
statutes.
repeal
did not
RCW
9.18.080
RCW 10.52.090. RCW
procedure whereby,
10.27.120and RCW
a
10.27.130
ordinary
immunity may
under
circumstances, transactional
be afforded a witness
to
entitled
claim
Fifth
the
Amend
privilege against
ment
self-incrimination. The
sections,
two
investigatory
as well as the criminal
act do
whole,
not
purport
repeal, modify
operate
to
in conflict with statutory
9.18.080or RCW 10.52.090.The two
schemes can
readily
together
harmony
stand
and function in
with one
Repeals by implication
another.
not
are
favored and will
not be found to
exist where earlier and later statutes
logically
by
stand side
side and be held valid. State ex rel.
Washington
Bellingham,
Mut. Sav. Bank v.
8 Wn.2d (1941); Copeland
We therefore, that RCW 9.18.080 and RCW applied Respondents testimony to and their before jury. grand the argues respondents however, further state, are immunity by
not to the afforded entitled RCW 9.18.080 jury- appeared before the 10.52.090since voluntarily response subpoena testified without asserting it Thus, their testify. compelled respondents were is contended points respect, Whalen, the State In state this (1919), that a it was held P. 130 wherein 287, 183 Wash. immunity not entitled a was before witness by purported to extend a statute which afforded testify. only “compelled” Because if a witness was Amendment witness, not claim his Fifth did Whalen, testifying, this held his court before immunity provision inapplicable. voluntary language of RCW from the fact Aside distinguishable from involved, is statute here holding in that Whalen, we are satisfied statute was too case narrow. constitutionally rule, and one a sounder
We believe
authority,
supported
weight
the con
embraces
subpoenaed
cepts
(a)
that:
*7
jury investigating
is under
and
subpoena; (b)
compulsion
of
of
virtue
privilege
removing the
9.18.080 and RCW 10.52.090
substituting
against
transactional
self-incrimination
self-executing;
(c)
terms
under the
therefor are
no alternative but
of
is left with
those statutes
witness
testify;
(d) requiring
cir
under such
the witness
'and
against
cumstances to invoke the
self-incrimina
performance
requiring
act.
of a useless
tion would be
376,
Ct.
424, 87 L. Ed.
63 S.
Monia,
United States v.
317 U.S.
(1943);
Hennessey,
355,
P.2d 875
State v.
195 Ore.
App.
(1952); People
P.
561, 248
Schwarz,
v.
78 Cal.
(1887);
(1926); People
Sharp,
Finally, of the in the state contends dismissal suppression respondents’ required; that dictments is not necessary. before the all that is is Again agree. language we cannot 10.52.090 The providing testifying a that witness under the terms of RCW prosecuted subjected penalty “shall not to a any on forfeiture matter or action, account thing concerning testify” which he shall so is clear and unequivocal. provides complete It transactional full and immunity, and no leaves room for use and derivative use immunity. Supreme interpret The United in States Court ing applying a similar in United statute States supra, explained Monia, the transactional nature thusly: statute legislation plain in in involved the instant case is layman
its is immunity. was the and, terms on if face, its he means to the subpoenaed, and sworn, and he is to have testifies, being trap Government, Instead of for the original question, Act, the statutes if inter- preted as the desires, Government now well be a trap Congress evidently for the witness. intended af- subpoenaing ford Government officials the choice of putting knowledge oath, him under with the complete immunity prosecution that he would have respecting substantially matter connected with the respect retaining transactions he testified, which right prosecute by foregoing opportunity examine him. supra
United Monia, States v. at 430. foregoing reasons, For the the order of dismissal affirmed.
Hale, C.J., Hunter, and Finley, Stafford, Wright, JJ., concur. Utter, and Brachtenbach, (concurring) majority J. concur with the Rosellini, —I subpoenaed before a obtain
that individuals bribery corrupt practice or solicitation, evidence of prosecution. holding is solicitation, are This immune only by compelled statutes, federal and our case law major 9.18.080and forth in as set ity opinion, §2, but art. 30: also in Const.
Any person may compelled lawful be any person investigation who judicial against proceeding may charged having the offense be committed corrupt practice of solicita- solicitation, permitted tion, and shall not to withhold his testi- be mony ground on the it himself or criminate infamy, testimony subject not afterwards ceeding except public him to but such shall any judicial pro- used him giving perjury in such — J., J. Wright, Rosellini, concurs with En Banc. November 1973.] 42432.
[No. Przbylski al., et Thomas, Plaintiff, J. Dolores Thomas Respondent. City Petitioners, Puyallup, Gibbs, & I. Stier Lanza, Kastner Robert Williams, petitioners. Mohlman, for Don Edwin R. Johnson and Gierke, &
Johnson Bradford respondent. Gierke, for curiae. Sullivan,
Dan amicus