Thornton v. State

108 So. 709 | Miss. | 1926

Lead Opinion

* Corpus Juris-Cyc. References: Criminal Law, 16CJ, p. 97, n. 52. Witnesses, 40Cyc, p. 2540, n. 40. 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 section 1792, Code of 1906 (section 2106, Hemingway's Code); the plea averring that he had been regularly subpoenaed to appear before the grand jury then in session, and that he had been regularly and legally sworn *268 by the foreman of the said grand jury and compelled there to testify to the facts and circumstances relative to the manufacture of the intoxicating liquor for which he was then indicted, and that such testimony tended to incriminate him in connection with said offense. To this plea the district attorney filed a replication denying the averments of the plea, and alleging that the appellant procured his admission to the grand jury room, and that he presented himself to the grand jury as a voluntary witness and was not required to be present or to testify before said grand jury. At the request of the appellant, this plea was heard by the circuit judge, without the intervention of a jury, and no point is made upon this procedure. At the conclusion of the testimony offered on this plea, it was overruled, and the trial proceeded resulting in the conviction of the appellant.

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 *269 of the parties who were operating the still, and stated that upon the approach of the officers, he fled and was captured, after having fallen over a log and hurt his leg.

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. *270

The state, however, invokes the further contention that the facts testified to by the appellant do not tend to incriminate him, and that, in order for one to be entitled to this immunity the evidence given by him must have been of a character which he was privileged to withhold under section 26 of the Constitution, or, in other words, evidence that would tend to incriminate him. Under our view of the testimony of the appellant before the grand jury, it will be unnecessary to pass now upon the merits of this contention. The admissions of the appellant of his presence at and around the still while whiskey was being made, and of his flight upon the approach of the officers, were circumstances which were admissible against him, and which tended to incriminate him.

The judgment of the court below therefore will be reversed, and the cause remanded.

Reversed and remanded.





Addendum

ON MOTION FOR FINAL DISCHARGE.
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.