Moloney v. Dows

By the court, Daly, First Judge. The verification of an answer may be omitted where the defendant, if a witness, would be privileged from testifying as to the truth of any matter alleged in the complaint (Laws of 1854, p. 158) and denied by the answer. The complaints in these cases charge the defendants with having committed a series of crimes, and there can be no doubt that, if they were under examination as witnesses, they would be privileged from answering as to many of the matters alleged in the complaints. It is insisted, however, that a defendant cannot put in an unverified answer to a sworn complaint until he has satisfied the court that it might expose him to a prosecution for a crime to verify it, or subject him to a penalty. That he must first move the court upon an affidavit declaring that such would or might be the effect if he were compelled to verify. That he must, by bringing the matter before the court in the form of. an affidavit, place himself in a position somewhat analogous to that of a witness under examination, that it may be left to the court to decide whether he must verify his answer or not—as it is not for him to determine whether he would be privileged, as a witness, from testifying to the truth of the matter denied by his answer. The 154th section of the Code, and the act of 1854, are both-founded upon a familiar principle in the law, that no one can be-compelled to accuse himself of crime, or to disclose anything that may have a tendency to expose him to a prosecution upon a criminal charge, or to any kind of punishment, or even to a. penal liability. 1 Greenleaf’s Evid., § 451. It is not necessary that such should be the direct effect; it is enough if it would or might lead to criminal proceedings against him. Bellinger v,. The People, 8 Wend. 595. If it would furnish one link in a chain of circumstances that would convict him, he need not answer. 1 Burr’s Trial, 244; Paxton v. Douglass, 16 Ves. 242. — 258 — Or, if he declares that he cannot answer without subjecting himself to criminal- liability, he cannot be required to show how or in what way it would have that effect. People v. Mather, 4 Wend. 229; Paxton v. Douglass, supra. This privilege is not confined to a witness on the stand, but extends to a party in every stage of a case. Thus, in a court of equity it is well settled that no man need discover matters tending’ to criminate himself, or to expose him to a penalty or forfeiture ; so that if a bill charges anything which, if confessed by the answer, may or might have a tendency to subject the defendant to a criminal prosecution, or to a penalty, he may claim his protection by demurring to so much of the bill. East India Company v. Campbell, 1 Ves., sr., 246; Chetwynd v. Lindon, 2 id. 450; Brownsword v. Edward, id. 243; Parkhurst v. Lowten, 2 Swanst. 214; Cartwright v. Green, 8 Ves., jr., 405; Skinner v. Judson, 8 Conn. 521; March v. Davidson, 9 Paige, 580; Adams’ Doctrine of Equity, 2; 2 Daniel’s Chancery Practice, 46. Or, if the objectionable disclosure is not apparent upon the face of the bill, he may raise the objection by plea, as in Claridge v. Hoare, (14 Ves. 59), where it is said, “If a bill states a marriage with a particular woman, the defendant may plead that she is his sister, and refuse to state anything more, or to speak as to any one fact forming a link in the chain." So, where a witness in equity is examined upon interrogations, he may refuse to answer any question tending to criminate 'him, or to subject him to a penalty, and his objection comes up in the form of a demurrer alleging the reason or grounds of the witness’ objection, which, if denied, must be supported by an affidavit. Gresley’s Equity Evidence, 77; Parkhurst v. Lowten, 3 Madd. 121. In every . case, therefore, at law or in equity, in which a witness or a party ..claimed the protection afforded by this general rule,, the question ..of his privilege was one for the determination of the court, and was brought before it either by an objection raised on the wit-mess’ behalf at the trial, or by the defendant’s demurring to the ■discovery sought by the bill, or where it could not be raised by .a demurrer to the bill, by bringing it before the court in the — 259 — form of a plea; or where a witness was examined out of court, by an instrument in writing, transmitted to the court by the officer before whom the witness was under examination, stating the grounds of his objection, accompanied by the proofs, if the reasons or grounds given by the witness were denied. Grresley’s Equity Evidence, by Calvert, 77, note f The question whether the party or the witness was privileged, came up in some shape to enable the court to determine judicially upon its validity. It was never left to the election or determination of the party, or of the witness. Has this course of procedure been abrogated by the act of 1854, and the previous enactments in the Code ? The act is very brief. It simply declares that “the verification of any pleading, in any court of record in this state, may be omitted in all cases where the party called upon to verify would be privileged from testifying as a witness'to the truth of any matter denied by such pleading.” .A provision substantially similar to this was incorporated in the Code when first enacted in 1848, (§ 133), that “ the verification may be omitted when the party would be privileged from testifying as a witness to the same matter.” It was stricken out at the amendment of the Code in the following year, and in the amendment of 1851 the provision in the Code, as it exists at present, was inserted—“that the verification may be omitted when an admission of the truth of the allegations might subject the party to a prosecution for felony)" which was modified after-wards by the special -statute of 1854, above referred to, bringing things back very much to what they were seven years before, when the Code was first enacted. During this course of varying and inconstant legislation, this ever-changing and shifting provision underwent judicial construction in a number of cases: Hill v. Muller, 2 Sandf. 684; While v. Cummings, 3 id. 716; Clapper v. Fitzpatrick, 3 How. 314; Thomas v. Hanop, 7 id. 57; Springstead v. Robinson, 8 id. 141; Scoville v. New, 12 id. 319; Lynch v. Todd, 13 How. 548; Blaisdell v. Raymond, 5 Abbott, 144. It would be unprofitable to review these cases, as the act of — 260 — 1854 must be regarded as controlling all the previous legislation, and it alone must be looked to in determining what is now the proper practice. It makes jerovision only for the service of an unverified answer where the defendant, by his answer, denies some matter in the complaint, in respect to the truth of which he could not be interrogated if he was under examinati on as a witness. The matter, averment, or fact in the complaint, denied by the answer, will be indicated by the complaint and answer, and if it is not of a character to justify the service of an unverified answer, the plaintiff has an easy remedy. He may move the court, as has been done in this case, for judgment for want of a sufficient answer, which, I suppose, -would be his proper course; or, if he should enter judgment for want of an answer, the question could come before the court upon the defendant’s motion to set the judgment aside. The question could not, as was the former practice in equity, be brought before the court by a demurrer, for the Code has defined the cases in which a defendant may demur, and this, is not one of them. The only course for a defendant, therefore, under this act, where something is alleged, in the complaint which he could not be interrogated upon if he was a witness, and which it is material he should put in issue, is to deny it by his answer, and serve his answer without verifying it. If it is not of the character supposed, the plaintiff’s motion for judgment will bring the question as effectually before the court as it was brought under the old equity practice, by a demurrer to so much of the bill. If the question of privilege is of such a nature that it would not appear by a mere denial of the averments in the complaint, then the act of 1854 has made no provision for such a case, and the old equity practice would prevail. The defendant would have to put in a verified answer, setting forth, analogous to the former plea in equity, the grounds or reasons why he is excused from answering any of the averments in the complaint, and if there is no validity in the reason or grounds assigned by him, the plaintiff, as before, may move for judgment for want of a sufficient answer. In either case, upon the service of an unverified answer, — 261 — or an answer verified, but assigning grounds why certain averments in the complaint should not be answered, the plaintiff, by a motion for judgment, can take the sense of the court as to the defendant’s right not to answer certain averments, or to serve an unverified answer. He can raise the question as effectually in this way as he could by the course of proceeding that was in use under the former equity practice. In these cases the defendants denied the averments in the complaints, and served their answers without verifying them. They adopted, in my judgment, the proper course, and on this motion for judgment it is sufficient to say, that there were averments in the complaints of a character that entitled the defendants to serve their answers without verifying them. The whole scope and tendency of the acts attributed to them is to show that they were guilty of crimes and misdemeanors. To use the language of the court in Skinner v. Judson, 8 Conn. Rep. 529, “ a defendant is protected from making answer when the allegations of a bill state many facts, each and all of which have a joint or united tendency to bring him within the penalty of the law.” It is suggested.that the defendants may have been pardoned, or tried and acquitted, or absolved from liability by lapse of time, or by a legislative act of amnesty, and that unless some proof is submitted, the court cannot assume that they are liable to punishment even if they have committed the acts attributed to them in the complaint. This suggestion might have been made with equal force against the former equity practice of allowing a defendant to demur to so much of a bill as imputed to him, or charged him with having committed a crime, and yet that practice was well settled. It is not necessary, as before remarked, that the direct effect will, or would, be to subject the party to punishment or to liability. It is sufficient that it may, or might, have that tendency, and neither a defendant nor a witness can be required to show how it would, or might, subject him to prosecution or punishment. The inquiry is totally barred the moment that it is apparent to the court that the object of it — 262 — is to obtain from the defendant or the witness an admission that he has been guilty of an act punishable as a crime; unless the interrogators refer to an act, an indictment for which would be barred by the statute of limitations, (Roberts v. Abbott, 1 Moody & Malkin, 192; People v. Mather, 4 Wend. 255,) when, if the inquiry were material, the party interrogated would be bound to answer. Even where a witness has been pardoned for the offence, he is privileged from answering respecting it. Rex v. Reading, 7 Howell’s State Trials, 296; Rex v. Earl of Shrewsbury, 8 id. Order appealed from affirmed.