People ex rel. Lewisohn v. O'Brien

Laughlin, J.: No question relating to the regularity of the practice upon the issue of the writ of habeas corpus and certiorari is presented. The prim cipal question arising on the appeal is whether the information filed against the relator on which the warrant was issued discloses facts showing the commission of a crime by him (People ex rel. Bungart v. Wells, 57 App. Div. 140), and this depends upon whether he was. justified in refusing to answer the questions on the ground of the* privilege conferred by section 6 of article 1 of the State Constitution. If not, the question was both relevant, material and proper, and his refusal to answer, assuming that the information filed against. Canfield gave the magistrate jurisdiction, authorized his punishment, by the magistrate under section 619 of the Code of Criminal Procedure “ as for a criminal contempt, in the manner provided in the-Code of Civil Procedure,” and subjected him to a criminal proseen — 57 — tion for a misdemeanor under subdivision 6 of section 143 of the Penal 'Code, which provides as follows : “ A person who commits a contempt of court of any one of the following kinds is guilty of a. misdemeanor: ■ * * * Contumacious and unlawful refusal to-be sworn as a witness, or, after being sworn, to answer any legal and proper interrogatory.” The offer of the district attorney and the consent of the magistrate to grant the relator immunity from any criminal prosecution would not bar such a prosecution, and, therefore, could not afford him full immunity therefrom. Section 342 of the Penal Code, contained in chapter 9 of title 10, relating to-“Gaming,” which embraces various crimes, commonly known as gambling and kindred offenses, provides as follows: “Eo person shall be excused from giving testimony upon any investigation or proceeding for a violation of this chapter, upon the ground that such testimony would tend to convict him of a crime; but such testimony cannot be received against him upon any criminal investigation or proceeding.” It is contended in behalf of the People that this section affords the relator the full measure of immunity guaranteed by said section 6 of article 1 of the State Constitution, which provides, among other things, that “no person shall be subject to be twice put in jeopardy for the same offense; nor shall he be compelled in any criminal case-to be a witness against himself; nor be deprived of life, liberty or property without due process of law; nor shall private property be taken for public use without just compensation.” The relator, on the other hand, contends that, if he shall be required to testify that he visited this alleged gambling house and to answer other questions, relating to his visits there and to what transpired, information will be disclosed which will afford a basis for a eriminakproseeution against, him for some of the crimes embraced in said chapter 9 of title 10 of the Penal Code, even though his evidence cannot be introduced against him on the-trial. The People rely on the case of People ex rel. Hackley v. Kelly (24 N. Y, 74), which, if it remains in full force as an authority for all that was decided, would undoubtedly be controlling, and under it the relator would not be excused from answering the questions, for it was there held that the provision of the State Constitution of 1846, which was precisely the same, did not protect a witness in a criminal prosecution against another from giving testimony — 58 — which may implicate him in a crime when he has been protected by a -statute against the use of such testimony on his own trial, even though the information thus elicited facilitates the discovery of other -evidence by which the witness may be subsequently convicted, and, furthermore, that this constitutional protection only extends to evidence given by a party upon a criminal prosecution against himself. The fifth amendment to the Federal Constitution, which was ratified by this State on the 27tli day of March, 1790, provides that no person shall “ be compelled in any criminal- case to be a witness against himself.” At that time there was no similar provision in our’State "Constitution, but in the second State Constitution, which was ratified by the people in 1822, a provision the same as that now contained in section 6 of article 1 was incorporated in section 7 of article 7 in precisely the same language as that contained in the Federal Constitution and presumably adopted therefrom. Similar provisions, in some instances differently phrased, were incorporated in the Constitutions of the several States. As these constitutional provisions came before the courts for judicial construction the decisions were Mot uniform. It was held by the highest court in some States that nothing short of absolute immunity from criminal prosecution for a crime would justify requiring a witness in any "action or judicial proceeding, whether against himself or another, to disclose his knowledge of facts that might tend to indicate that he was guilty of an offense ; and in some other States, as in this, it was-held that immunity against the introduction upon a criminal prosecution of the evidence thus elicited was the extent of the constitutional guarantee, It is manifest that- these corresponding provisions of the Federal and State Constitutions were designed to confer the same individual rights and afford the same protection; and, as has been since declared by the Supreme Court of the United States, they should receive the same construction. That learned court in an opinion delivered by Mr. Justice Blatchford, in which all concurred (Counselman v. Hitchcock, 142 U. S. 547, 584), discussing this point,said : “ But as the manifest purpose of the constitutional provisions, both of the States and of the United States, is to prohibit the compelling of testimony of a self-criminating kind from a party or a witness, the liberal construction which must be placed upon constitutional provisions for the protection of personal rights would Seem — 59 — to require that the constitutional guaranties, however differently worded, should have as far as possible the same interpretation. * * * It is contended on the part of the appellee that the reason why the courts in Virginia, Massachusetts and Few Hampshire have held that the exonerating statute must be so broad as to give the witness complete- amnesty, is that the Constitutions of those States give to the witness a broader privilege and exemption than is granted by the Constitution of the United States, in that their language is that the witness shall not be compelled to accuse himself or furnish evidence against himself, or give evidence against himself ; and it is contended that the terms of the Constitution of the United States, and of the Constitutions of Georgia, California and Few York are more restricted. But we are of o-pinion that however this difference may have been commented on in some of the decisions, there is really, in spirit and principle, no distinction arising out of such difference of language.” The court in the opinion in that case considered the various constitutional provisions and the decisions made thereunder on the precise point now under consideration and, concerning the meaning of the provisions, said: “ It is a reasonable construction, we think, of the constitutional provision that the witness is protected ‘ from being compelled to disclose the circumstances of his offense, the sources from which, or the means by which, evidence of its commission or of his connection with it may be obtained or made effectual for his connection,* without using his answers as direct admissions against him.’ ” The quotation made by the court was from Emery’s Case (107 Mass. 172, 182). The court further said: “We are clearly of opinion that no statute which leaves the party or witness subject to prosecution after he answers the criminating question put to him, can have the effect of supplanting the privilege, conferred by the Constitution of the United States. Section 860 of the Revised Statutes† does not supply a complete protection from all the perils against which the constitutional prohibition was designed to guard, and is not a full substitute for that prohibition. In view of the constitutional provision, a statutory enactment to be valid must afford absolute immunity against future prosecution for the offense to which the question relates. In this — 60 — respect we give our assent rather to the doctrine of Emery’s Case in Massachusetts, than to that of People v. Kelly,* in New York.” Since this decision by the Federal Supreme Court, as might be expected, the judicial tribunals of several States have adopted the views of the Supreme Court of the United States in construing such constitutional provisions; and in some instances where it became necessary to "overrule former decisions of the same State courts. (Lamson v. Boyden, 160 Ill. 613; Smith v. Smith, 116 N. C. 386; Ex parte Cohen, 104 Cal. 529; Matter of Buskett, [Mo.] 14 L. R. A. 407, Overruled by Ex parte Arnot Carter, 166 Mo. 604; Miskimins v. Shaver, [Wyo.] 58 Pac. Rep. 411.) Assuming, without deciding (see 6 Am. &Eng. Ency. of Law [2d ed.], 965; O’Neil v. Vermont, 144 U. S. 323; Maxwell v. Dow, 176 id. 581), that the fifth amendment to the Federal Constitution only applies to actions and "proceedings' in the Federal courts, and that the decision of the Supreme Court in Counselman v. Hitchcock (supra) for that reason is not binding upon us, yet the question being akin to those questions of personal and property rights that are guaranteed to all citizens by the Federal Constitution, there could be but little doubt, even if there were no other decisions by our own Court of Appeals, that when the question is again presented our Court of ■ Appeals would apply the liberal rule expounded by the Supreme Court of the United States after an exhaustive research and great deliberation. But we are not left to speculation on this question or in doubt as to the propriety of acting on that assumption; for the Court of Appeals in the case of People ex rel. Taylor v. Forbes (143 N. Y. 219) has in part at least followed and, we think, fully approved of the doctrine of Counselman v. Hitchcock (supra). The opinion in the Taylor Case, after quoting or citing the provisions of the Federal and State Constitutions to which we have referred and the similar provision incorporated in the Code of Criminal Procedure (Code Crim. Proc. § 10), proceeds: “These constitutional and statutory provisions. have long been regarded as safeguards of civil liberty, quite as sacred and important as the privileges of the writ of habeas corpus or any of the other fundamental guaranties for the protection of personal rights. "When a proper case arises they should be applied in a broad and liberal spirit in order to secure -to- the citizen that immu — 61 — .nity from every species of self-accusation implied in the brief but comprehensive language in which they are expressed. The security which they afford to all citizens against the zeal of the public prosecutor, or public clamor for the punishment of crime, should not be impaired by any narrow or technical views in their application to such a state of facts as appears from the record before us. The right of a witness to claim the benefit of these provisions has frequently been the subject of adjudication in both the Federal and State courts.. The principle established by these decisions is that no one shall be compelled in, any judicial or other proceeding against himself,, or upon the trial of issues between others,.to disclose facts or circumstances that can be used-against him as admissions tending to prove his guilt or connection with any criminal offense of which lie may then or afterwards be charged* or the sources from which or the means by which evidence of its commission or of his connection with it may be obtained.” The court then construe the Counselman case and say concerning the decision: “ The court, sustaining the privilege contended for in behalf- of the Witness, held that the object of the constitutional provision was to insure that a person shall not be compelled when acting as a witness in any investigation, to give testimony which' may tend to show that he himself has committed a crime, and that its meaning was that a witness is protected from any compulsory disclosure of the circumstances of his offense, or the source from which, or the means by which, evidence of its commission,, or of his connection with it, may be obtained, or made effectual for his conviction, without using his answers as direct admissions against him. This conclusion was reached, although there is a general Federal' statute providing that in such cases the- testimony given by the witness at the investigation shall not be given in evidence against him, subsequently, in any civil or criminal proceeding. (U. S. R. S. § 860.) It seems that in such cases nothing short of absolute immunity from prosecution can take the place of the privilege by which the law affords protection to the witness.” We are, therefore, of opinion that the case of People ex rel. Hackley v. Kelly (supra) is no longer a controlling authority and that the doctrine of the Supreme Court of the United States should be followed. It necessarily follows that section 342 of the Penal Code is not sufficiently broad in — 62 — that it does not grant absolute immunity to the witness from prosecution for the crime which he believes his evidence will tend to disclose, and, therefore, the relator was privileged from answering unless it is manifest beyond a reasonable doubt that the answers could not aid the prosecution in proving any link in the chain of evidence necessary to convict the relator of any crime on a criminal prosecution against him thereafter. (People ex rel. Taylor v. Forbes, supra, 230, 231; 1 Whart. Ev. [3d ed.] § 536; State ex rel. Attorney-General v. Simmons Hardware Co., 109 Mo. 118.) The law limits this privilege to thé protection of the witness or party, and, while he should not be permitted to make use of it in bad faith, yet whether his answers in a given case will tend to incriminate him or not must rest largely with the witness himself. Speaking on this point, Judge O’Brien, writing for the court in People ex rel. Taylor v. Forbes (supra), said: “ The witness who knows what the court does not know, and what he cannot disclose without accusing himself, must in such cases judge for himself as to- the effect of his answer, and if, to his mind, it. may constitute a link in the chain of testimony, sufficient to convict him, when other facts áre shown, or to put him in jeopardy, or subject him to the hazard of a criminal charge, indictment or trial, he may remain silent. While the guilty may use the privilege as a shield it may be the main protection of the innocent, since it is quite conceivable that a person may be placed in such circumstances, connected with the commission of a criminal offense, that if required to disclose other facts within his knowledge he might, though innocent, be looked upon as the guilty party. * » » qqie weight of authority seems to be in favor of the rule that the witness may be compelled to answer when he contumaciously refuses, or when it- is perfectly clear and plain that he is mistaken, and that the answer cannot possibly injure him, or tend in any degree to subject him to the peril of prosecution. But the courts have recognized the impossibility in most cases of anticipating the effect of the answer. Where it is not so perfectly evident and manifest that the answer called for cannot incriminate, as to preclude all reasonable doubt or fair argument, the privilege must be recognized and protected.” In the case at bar there is nothing to indicate bad faith on the part of the relator. He has manifested a willingness to answer any question relating to a period when the Statute of Limitations would63 be a bar to a criminal prosecution against him. If he should be prosecuted for gambling at Canfield’s one very important link in the chain of evidence would be to show that he was there, when he was there and who else were there at the same time. This is the evidence sought to be elicited by the questions which he declined to. answer. Had it been elicited it might disclose sources of evidence, for the People upon which to found a criminal prosecution against the relator. It is not contended by the learned assistant district attorney that the questions which the relator declined to answer were of such a preliminary character that they would not and. coiild not elicit information which might aid the People in a criminal prosecution against the relator; and, it being apparently the. desire of both parties to obtain a' decision on the merits adjudicating Whether the relator may be compelled to fully disclose his. knowledge rather than whether he has technically become liable ta a criminal prosecution, the only purpose of which is to coerce him into answering,, it is not necessary for us to give that point special consideration. Having reached the conclusion that the witness was privileged from answering, we deem it proper to base bur decision upon that, broad ground, inasmuch as a decision on that point is desired by both parties and goes to the real merits; and we refrain from, expressing any opinion on the other questions which would otherwise require consideration at our hands. It follows, therefore, that the order should be reversed, the writs sustained and the relator discharged. Van Brunt, P. J., and Ingraham, J., concurred; McLaughlin- and Hatch, JJ., dissented. Footnotes [*] Conviction. [†] U. S. R. S. § 860—[Rep. [*] People ex rel. Hackley v. Kelly.