No. 1150 | Haw. | Jan 21, 1919
Lead Opinion
OPINION OF THE COURT BY
On the 27th day of August, 1918, A. M. Cabrinha, a member of the board of supervisors of the County of Hawaii, was indicted for alleged violations of section 168, R. L. 1915.
The defendant has filed a motion to quash said indictment alleging “that the said A. M. Cabrinha was required by a subpoena to appear on the 26th day of August, 1918, before the said grand jury as a witness while the said indictment and the charges of violation of section 168 of the Revised Laws of Hawaii therein contained were pending-before the said grand jury, and while they were inquiring into said charges and considering- the question whether they would find the said indictment to be a true bill; and that he, the said A. M. Cabrinha, did appear in obedience
The facts were tried upon the affidavits of defendant and the foreman of the grand jury from which the circuit judge has found and certified the facts substantially as follows: That on August 23 the said A. M. Cabrinha was subpoenaed to appear before the grand jury on August 26 as a witness; that in response to said subpoena he did so appear on said August 26, whereupon he was sworn as a witness, after which and before he was interrogated he was advised by the deputy attorney general in the presence of the grand jury that the grand jury desired to ask him certain questions concerning matters then under investigation by said grand jury, and further that if any question should be propounded to him, an answer to which, in his opinion, might tend to incriminate him in any way he might refuse to answer such question; that the deputy attorney general thereupon propounded to him, in the presence of the grand jury, certain questions and in response thereto he made statements as to the business of Cabrinha & Company named in said indictment, and as to the ownership of said business and the names of the partners and persons pecuniarily interested in the business transacted by said firm, said matters and things relating to and being material to the charges made in said indictment; that testimony as to these matters had previously been given by other witnesses; that at the time of his examination as a witness he did not know and was not informed that his own conduct was under investigation;
The circuit judge believing that it is in the interest of justice that the questions of law presented by the facts upon said motion shall first be determined by this court has reserved the following questions:
(1) “Should an indictment be quashed when it appears that the defendant was compelled by subpoena to attend before the grand jury, and give material testimony, without knowing that his own conduct was under investigation?”
(2) “Upon the facts found by the trial court, as above set forth, should the motion to quash the indictment be granted?”
The first question is not sufficiently comprehensive to make an answer to it of value in this case and is therefore returned unanswered. However, an answer to the second question is all that is necessary to apprise the circuit judge of the law applicable to the facts before him.
The question is, are the above facts sufficient to vitiate the indictment? This question involves that portion of the Fifth Amendment to the Constitution of the United States which provides: “Nor shall any person * * * be compelled in any criminal case to be a witness against himself.”
Our first concern is to determine whether under the circumstances of this case the defendant was “compelled,” as that term is used in said amendment, to be a witness against himself, or was his testimony voluntarily given? If he was compelled to be a witness against himself his constitutional right was invaded and the indictment which resulted from his so being compelled is invalid and should
“It is well settled that a witness cannot claim his constitutional privilege until he is sworn. He must take the oath, so that his assertion of privilege shall he made under that sanction.” United States v. Kimball, 117 F. 156" court="None" date_filed="1902-03-07" href="https://app.midpage.ai/document/united-states-v-kimball-8748280?utm_source=webapp" opinion_id="8748280">117 Fed. 156, 163.
From the fact that one cannot claim one’s constitutional privilege until after taking the oath it necessarily follows that the constitutional privilege cannot until that time be violated. It cannot be violated before it can he invoked. Compulsion, then, does not arise from the summoning, swearing and examination of the witness on matters which do not tend to incriminate him.
It will now he considered whether the additional facts,
It is not contended that the defendant was not advised of his right to refuse to make self-incriminating statements or that he raised any objection to answering any of the questions of which he now complains. The complaint is that he did not know and was not advised that his conduct was the subject of investigation and that he, therefore, cannot be held to have given his testimony voluntarily.
In the case of United States v. Edgerton, 80 F. 374" court="D. Mont." date_filed="1897-04-21" href="https://app.midpage.ai/document/united-states-v-edgerton-8858700?utm_source=webapp" opinion_id="8858700">80 Fed. 374, cited by defendant and confidently l’elied upon in support of his proposition that one cannot be said to have acted voluntarily who gave his testimony without knowing that his own conduct was under investigation it does not appear that the defendant was advised of his right to refuse to give self-incriminating evidence. This fact robs the opinion in that case of any particular application to the ease at bar where the defendant when called before the grand jury was fully advised of his right to refuse to give self-incriminating evidence. What effect then, if any, should be given to the fact that the defendant was so advised? From 22 Cyc. 423, we quote the following:
“An indictment will be quashed where defendant was called to testify before the grand jury as to the matter from which it resulted, without knowing or being informed that his own conduct Avas under investigation, and although. such is not a statutory ground for quashing the indictment. But where defendant has been adAised of his right to decline to ansAver upon the ground of self-incrimination it has been held that his voluntary testimony is not ground for quashing.”
In support of the last sentence of this text the case of
We do not think the fact that the defendant Avas not told before giAdng his testimony that his oavu conduct was under investigation rendered his testimony involuntary since he was advised of his right to refuse to answer any question the ansAver to which in his opinion might tend in any Avav to incriminate him. He must be assumed to he a man of ordinary intelligence and' to be able to differentiate between statements AAdiich would and those Avhich would not tend to incriminate him. Had he known that his own conduct was under investigation how could that knowledge have aided him in determining whether or not his ansAver to any given question might have a tendency to incriminate him? When he was advised of his right to refuse to answer he was placed on his guard and if he failed to avail himself of his privilege he must he deemed to have waived it and to have testified voluntarily, hence his constitutional privilege was not invaded.
“In all cases where a personal privilege exists for a Avitness to testify or not., if such witness does testify without objection he Avill be deemed to have done so voluntarily. Hoav could there be compulsion or legal restraint, Avhen*627 there was no law which could compel Lauder to testify to criminating matters against himself, or punish him for refusing to testify?” People v. Lauder, 82 Mich. 109" court="Mich." date_filed="1890-10-07" href="https://app.midpage.ai/document/people-v-lauder-7934842?utm_source=webapp" opinion_id="7934842">82 Mich. 109, 119, 120.
The first question is returned not answered and the second question is answered in the negative.
Dissenting Opinion
DISSENTING OPINION OP
The affidavit of the defendant herein shows and it was found and is certified by the circuit court to be a fact that at and during the examination the defendant was wholly ignorant of the fact that the charges in the indictment were being inquired into by the grand jury. The subpoena requiring the defendant to appear before the grand jury does not contain the slightest intimation of the nature of the investigation being conducted. There are instances where the subpoena, the nature of the questions propounded or other circumstances should clearly indicate to a person of ordinary intelligence that his own conduct was under scrutiny. In such a case it would perhaps be unnecessary to advise the witness of the nature of the investigation, as also where the witness is a lawyer it might not be deemed necessary to advise him of his constitutional right to refuse to give self-incriminating evidence. But in the present case the record conclusively shows that the defendant Aims not aware of the nature of the investigation. It appears that the questions propounded to defendant while before the grand jury had to do with the business of the firm of Cabrinha & Company and particularly respecting the names of persons having pecuniary interests therein. This information might have been required by the grand jury in an inquiry in which the conduct. of the defendant was in no Avay connected. Under
In the case of the United States v. On Tai, 3 U. S. Dist. Ct. Haw. 491, the defendant prior to his indictment was subpoenaed by the grand jury and conducted before it by the United States marshal. After the witness was sworn he was advised by the United States attorney that he need not answer any questions if he did not want to and that he had a right to refuse to answer all questions. He then gave self-incriminating evidence and was subsequently indicted. Thereafter he moved to quash the indictment upon the same grounds as are presented in the case at bar. In the opinion in that case, which was written by a former chief justice of this court, the indictment was sustained although the procedure was severely criticized. But, as contra-distinguished from the present case, the court there found from the evidence of the defendant and from the fact that the property of the Federal government which it was alleged he unlawfully purchased from a soldier was taken from his house at the time he was subpoenaed and was exhibited before him in the grand jury room, that he was aware of the nature of the inquiry being conducted by the grand jury. The court said, “I do not hesitate to express my disapproval of the calling of the defendant in this case before the grand jury under the circumstances shown. * * But, having been sent for, the fact that his conduct was being investigated should have been clearly explained to him and, to have been absolutely fair, an opportunity should have been given him to consult with counsel even though he was not entitled to the assistance of counsel as he would be if on trial. But in view of the fact that
In the majority opinion it is held that the case of United States v. Edgerton, 80 Fed. 371, does not apply here because in that case it does not appear that the defendant was advised of his right to refuse to give self-incriminating evidence. That question was not before the court in the Edgerton case and no point Avas made of it. The decision is based solely upon two points, first, respecting the presence in the grand jury room of a person who it was claimed had no right there, and second, “that the defendant was required by a subpoena to appear before the grand jnry as a witness and that he did appear in obedience to snch subpoena and was Sworn and examined and required to testify to matters and things relating to and material the charge made in the indictment against him and this without being informed or having knoAvledge that the grand jury had under consideration any matter involving a criminal charge against him.” And the court in passing upon the second ground presented used the folloAving clear and emphatic language: "It is fatal to the indictments that the defendant toas called to testify in the particular matter from which they resulted without being informed or knowing that his oxen conduct teas the subject under investigation
I cannot conceive of language more clearly applicable
The majority opinion, Avhile recognizing the necessity of advising a Avitness of his constitutional privilege to refuse to give self-incriminating evidence, denies him the right to knoAV the nature of the inquiry. The latter I think is equally as essential as the former, for how can- a Avitness determine Avhether his evidence may or may not incriminate him if he be in total darkness as to the matter under investigation.
In my opinion the motion to quash should be granted. The cause can then be resubmitted to another grand jury free from any Adolation of the constitutional rights of the defendant.