Thornton v. StateThornton v. State
- Reporters:
- , ,
- Before:
- Cook
Where defendant voluntarily went before grand jury for purpose of testifying as to a certain matter, and when in act of leaving was called back and questioned relative to whiskey business and rum running, he was entitled, under
2. Witnesses.
Testimony given by defendant before grand jury, admitting presence at still and stating that on approach of officers he fled and was captured, held such as would tend to incriminate him in prosecution for manufacturing liquor and of character that he was privileged to withhold under
Under these authorities, particularly the Lucas, Turnage and Ryan cases, we submit that the plea of immunity is good and that the appellant should now be discharged.
Counsel
In the Ryan case cited by counsel the defendant was subpoenaed to appear before the grand jury but his testimony as to the facts which incriminated him was given voluntarily. In both of these cases, however, there was no question but that the facts testified to by the defendant were such facts as tended to incriminate him and in all of these cases there was an admission of guilt made by the defendant in his testimony before the grand jury.
The Suddoth, Triplett, Griffin and Wall cases are all to the same effect, each involving a situation where the defendant testified to facts which were of themselves a confession of guilt by him. None of these cases, therefore, involved facts which were similar to those which we here have before us.
The facts here present a case which is very peculiar in two respects: (1) It is unusual in that the defendant procured himself to be brought before the grand jury; and (2) in that the facts to which he testified there were not such facts as would incriminate him, but on the contrary were such as would prove his innocence. The defendant did not admit his guilt before the grand jury, but his testimony amounted to a plea of not guilty.
We
The findings of fact made by the court are just as final and conclusive as the verdict of a jury would have been. By its decision the court determined: (1) That the defendant procured himself to be brought before the grand jury for the purpose of obtaining immunity from prosecution; (2) That the facts testified to by him before the grand jury did not tend to criminate him of the crime for which he was being tried. This determination of the facts by the court must prevail since there was plenty of evidence supporting its findings.
The case of Turnage v. State, 134 Miss. 431, held that this immunity statute did not apply to the case of a person testifying on behalf of a defendant even though he were legally subpoenaed, and that this was true even though the terms of the statute itself were broad enough to cover such a case. The reasoning in that case is particularly applicable to the facts in this case.
If the statute is not to be applied in such a case as the Turnage case, how much stronger is the reason that it should not be applied in the case of a person seeking by his own fraudulent acts to obtain the immunity granted? .
We have been unable to find any Mississippi cases which involve this exact point. We present, however, for your Honors’ consideration the Alabama case of Burt v. State, 101 So. 768. See, also, State v. Carchidi (Wis.), 204 N. W. 473; Davis v. State (Texas), 246 S. W. 395.
We respectfully submit that no error was committed by the court in overruling the plea of immunity filed by the defendant.
In
The statute does not say that this testimony must tend to incriminate him. The reasoning of the court in the Turnage case is to the effect that the state may, if it sees fit, make this trade with the defendant. If it does, the defendant is entitled to this immunity regardless of the nature of his testimony. The case of State v. Carchidi, 204 N. W. 473, cited by counsel for appellee, decides that, “The evidence given by him must have been of a character which he was privileged to withhold under the constitution,” —in other words, evidence that would tend to incriminate him.
This opinion limits the language of the statute very much. It is directly contrary to the enunciation of the Federal court in the case of U. S. v. Armour & Co., 142 Fed. 808. The case of Davis v. State, 246 S. W. 395, also relied upon by the appellee merely decides that the testimony of the woman in that case was not testimony against her or against anybody else.
However, if this court should adopt the stringent rule laid down by the Wisconsin court, namely, that the testimony must tend to incriminate him, then Thornton is still entitled to immunity because his testimony tends to incriminate him. He told the grand jury of the still, who was there, and that he thought he got shot, etc. Again, he told the grand jury that he saw the liquor running and that he was making it.
Counsel
In the Alabama case, Burt v. State, 101 So. 768, the man deliberately told the prosecuting attorney a story by virtue of which he was permitted to appear before the grand jury. In this case the appellant told the member of the grand jury the truth. Appellant was under oath.
We, therefore, submit that as a matter of law he is entitled to immunity and ask that he be discharged in this court.
Cook, J., delivered the opinion of the court.
The appellant and others were jointly indicted for manufacturing liquor. Upon the separate trial of this appellant, he was convicted and sentenced to the penitentiary for one year, and from this conviction and sentence this appeal was prosecuted.
Before his trial, the appellant filed a special plea claiming immunity from prosecution and punishment by virtue of
From the testimony offered on this plea, it appears that the appellant approached the foreman of the grand jury and stated that he desired to go before the grand jury for the purpose of reporting certain alleged illicit relations between his brother and a negro woman; that he was later admitted to the grand jury room and regularly sworn to testify; that he thereupon reported the alleged misconduct, but disclaimed personal knowledge of the facts; that he then furnished the grand jury the names of several witnesses, who he claimed would testify to the facts which he had reported; that after the clerk of the grand jury had taken down the names of these witnesses, the appellant either left the room or was in the act of leaving, when a member of the grand jury called him back and asked him if he knew anything about the whiskey business or rum running; that he replied that he did, and thereupon related the circumstances of the raiding of the still upon which the indictment then pending against him was based; that he admitted that he was present at the still while it was being operated, although he did not admit that he participated in the operation thereof; that he furnished the names
Upon this testimony the claim of immunity should have been allowed. In the case of Lucas v. State, 130 Miss. 8, 93 So. 437, it was held that: “A person who voluntarily appeared before a grand jury and testified before it relative to the manufacture of intoxicating liquor, in which he participated, cannot be punished for manufacturing the liquor, although he had been indicted therefor prior to his appearance before the grand jury.”
Again, in the case of Turnage v. State, 134 Miss. 431, 99 So. 9, the court said that: “It is wholly immaterial whether such testimony be voluntary or under compulsion. If it be voluntary and permitted by the state, the witness is as much entitled to the immunity given by the statute as if his testimony had been given under compulsion.”
Conceding that one, who by fraud or subterfuge procures himself to be examined by a grand jury or court about a transaction, cannot claim immunity as a result of such testimony, this doctrine would have no application to the facts here presented. This appellant secured admission to the grand jury room for a stated purpose, and when he had concluded this particular business he either left the jury room and was called back, or he was in the act of leaving, when one of the members of the jury asked him about violations of the liquor law. It may be that he entered the jury room with the hope in his breast that he would be examined about the transaction, but the fact remains that he volunteered no statement in regard thereto, and did nothing whatever to induce a member of the grand jury to interrogate him in regard to the whiskey business. When he was asked in regard to his knowledge of violations of the liquor laws, he was required by his oath to answer, and he is not deprived of his right to immunity by reason of the fact that he voluntarily went before the grand jury.
The
The judgment of the court below therefore will be reversed, and the cause remanded.
Reversed and remanded.
On Motion for Final Discharge.
Per Curiam. The motion of the appellant for a judgment finally discharging him from further prosecution in this case is sustained, and it is ordered that the former judgment herein, directing the remand of the cause, be set aside, and judgment entered finally discharging the appellant.
Motion sustained.