State v. MILAMState v. MILAM
The problem here is to determine whether testimony before a grand jury by appellees, H. E. Milam and S. L. Milam, was given under such circumstances as to render it involuntary and therefore unusable as the basis of a criminal prosecution.
In Septеmber, 1948, H. E. and S. L. Milam operated a store in Crowder, Quitman County, Mississippi, which was burglarized. They suspected that Chism and Tiner had committed the crime and proceeded individually to try to arrest them on the highway. . Chism escaped but Tiner was “arrested” by them аnd taken to the sheriff. Tiner was there questioned and made some sort of alleged confession to the sheriff, which does not fully appear in the record. Chism asserted that the Milams had committed an assault and battery upon him, and Tiner chаrged the Milams with kidnapping. The Milams in turn charged Chism and Tiner with burglary. Each side was making charges against the other and urging the district attorney to permit them to submit their charges to the grand jury at the approaching term of circuit court.
Chism and Tiner employed an attorney who advised the district attorney that his clients wanted to go before the grand jury, tell everything they knew about these matters, including the alleged burglary, and make complaints against the two Milams. The district attorney advised the lawyеr for Chism and Tiner that they could not make any statements that might incriminate them
Before and after the grand jury convened, the Milams also' had discussed these matters with the district attorney and advised him that they wanted to appear before the grand jury and tell all that thеy knew about all of these matters. Hence the charge of burglary against Chism and Tiner was docketed for the grand jury to consider. The Milams were subpoenaed to appear before it. When this body assembled, the district attorney advised its members that he was going to call in the Milams and not to ask them any questions until he explained to the Milams certain things. The Milams came in the grand jury room in the presence of the grand jury, the county attorney, and the district attorney. They sat down and the district attorney showed them the written waiver which had been signed by Chism and Tiner several days earlier. He explained that these latter parties were going to' tell all they knew of these matters, and that the Milams had a privilege not to tеstify if they did not want to. He explained that unless they signed the waiver they could not testify about anything except the burglary. There is some dispute in the record about this, but for the purposes of this opinion we will assume that they were advised that they сould testify about the burglary without signing a waiver. However, it was in fact almost impossible for the appellees to separate their testimony about the burglary from that about the assault and battery and kidnapping. Apparently the only evidence of the burglary was the alleged confession, which was claimed to have been obtained from Tiner as a result of the alleged assault and battery.
The Milams then stated that they wanted to tell all they knew about all of these matters, and in the presence of the grand jury they then signed the same waiver
They then proceeded to narrate sеparately their versions of these various events. Subsequently the Milams were indicted for assault and battery on Chism. They moved to quash this indictment on the ground that it was based upon their testimony before the grand jury and that such facts so acquired could not be the subject of the charges, because they had a constitutional immunity against self-incrimination, under Section 26 of the Mississippi Constitution. Section 26 provides that in all criminal prosecutions the accused “shall not be compеlled to give evidence against himself . . ..” The trial judge sustained a motion to quash the indictment on the ground that the calling of these defendants before the grand jury and informing them that their adversaries had signed a waiver and would testify divested the waiver оf its voluntary status. He held that the defendants deemed that it was imperative that they testify before the grand jury under these circumstances and refute the testimony that would be given by their adversaries, and that the Milams thought that their refusal to sign the waiver in thе presence of the grand jury would be construed by the grand jurors as a confession of g’uilt and would have an adverse effect on their case. From this action, the State appealed, under the authority of Mississippi Code of 1942, Seсtion 1153.
We believe that there was ample evidence in the record and in the entire context of the situation to sustain the finding of the trial judge that the execution of the waiver and the testimony of the defendants were involuntarily given within the terms of their constitutionally protected rights. The State’s attorneys acted manifestly in a spirit of fairness toward the appellees and advised them orally of their rights before they signed the waiver and testified. However, the entire situation itself must have exerted a strong pressure on appellees to do this.
The trial judge who heard the testimony and observed the witnesses was justified in finding as he did that such circumstances deprived the testimony of appellees of its voluntary status. Certainly we cannot say that he was manifestly wrong. The protection of important constitutional privileges such as that against compulsory self-incrimination must encompass the subtle as well as the apparent. It is the responsibility • of the courts to examine carefully the merits of every claim of this privilege. It is a privilege which a person must claim or he waives it. Steele v. State, 1899,
Such constitutional provisions granting witnesses a privilegе from giving self-incriminating evidence are intended for the protection of the witness and have no proper application when the witness is not in danger of actual conviction. There are many statutes providing that such a witness is entitled to the immunity coextensive with that secured to- him by the Constitution, and that thereby his testimony may be required. There are several Mississippi statutes granting such immunity where evidence has been given by an accused with reference to certain types of crimes. Mississippi Code 1942, Sections 2527, 2529, 2530, and 2531. However, these statutes are not applicable to the present situation.
The essential thing- is that the testimony be voluntarily and willingly given. The turning point here is not whether the waiver but rather the testimony of appellees was of that nature. The two are interrelated, in that they both reflect the coercive effect of the situations' at that time, but the motivation of appellees’ testimony is the determining factor. If they had еxecuted the waiver out of the presence of the grand jury, and with knowledge of their rights and had then testified, the improper motivation may have been absent.
The courts have recognized' realistically and for a long time this situation-tyрe of pressure on a witness. There apparently have not been any cases involving the particular facts of this case, but analogous to it in this sense is the almost unanimous agreement that in the trial of a criminal case it is imprоper for the prosecuting attorney or the court in the presence of the jury to call upon the defendant or his counsel to produce a document as being* in his possession. See note, 110 A. L. R. 101 (1937). In Powell v. Commonwealth of Virginia, 1937,
The same type of protection should be applicable to testimony in grand jury proceedings. Wigmore says that “the.protection . . . extends to all manner of proceedings in which testimony is to be taken . it therefore applies to . investigations by a grand jury . . ..”8 Wigmore, Evidence, pages 325-326, footnote 12. Although a statute granted immunity in Fine v. State, 1929,
For the above reasons the action of the trial judge in sustaining the motion to quash the indictment is hereby affirmed.
Affirmed.
The above opinion is adopted as the opinion of the Court, and for the reasons therein indicated thе case is affirmed.
On Suggestion of Error.
In the suggestion of error filed by the district attorney there is much concern therein expressed that our de
Section 1153, Code of 1942, provides that: “The state . . . may prosecute an appeal from a . . . judgment sustaining ... a motion to quash an indictment, . . .; but such appeal shall nоt bar or preclude another prosecution of the defendant for the same offense.” We held in the former opinion that Sections 2527, 2529, 2530' and 2531, Code of 1942, granting immunity are not applicable to the present situation, and no other statute is called to our attention either by the prosecution or the defense that would grant permanent immunity from prosecution for the offense here charged if and when an indictment is returned on testimony before a grand jury other than that of the accused offenders.
Suggestion of error overruled.