Ex parte Clarke

37 P. 230, 103 Cal. 352, 1894 Cal. LEXIS 776

• Court: California Supreme Court
• Decided: June 30, 1894
• Docket: No. 21085
• Status: Published

Opinion

Beatty, C. J.

The petitioner having been duly adjudicated an insolvent debtor, his assignee in insolvency filed a petition charging him with having concealed, smuggled, conveyed away, and disposed of property which should have been turned over to said assignee for the benefit of his creditors, qpon which a citation was issued commanding him to appear before the superior court to be examined touching the matters alleged in the petition.

In obedience to the citation the petitioner came into court and was sworn, but declined to answer the questions put to him, upon the ground that his answers might be made the foundation of a criminal action against him. Section 154 of the Penal Code reads as follows: “Every debtor who fraudulently removes his property or effects out of this state, or fraudulently sells, conveys, assigns, or conceals his property, with intent to defraud, hinder, or delay his creditors of their rights, claims, or demands, is punishable by imprisonment in the county jail not exceeding one year, or by fine not exceeding five thousand dollars, or by both.” It is evident that any answers the petitioner might have made tending to support the allegations of the petition upon which he was cited for examination would also have had a tendency to convict him of the crime or public offense defined in the section quoted, and, therefore, he could not be subjected to compulsory examination.

Ho person can be compelled in any criminal case to be a witness against himself. (Constitution; art.I, sec. 13.)

To bring a person within the immunity of this provision, it is not necessary that the examination should be attemped in a criminal prosecution against the witness, or that such a prosecution should have been commenced and actually pending. It is sufficient if there is a law creating the offense under which the witness may be prosecuted. If there is such a law under which the witness may be indicted or otherwise prosecuted for a public offense arising out of the acts to which the examination relates, he cannot be compelled to answer in any collateral proceeding unless the law absolutely secures him against any use in a criminal prosecution of the evidence he may give; and this can only be done by a provision that, jf he submits to the examination and answers the questions, he shall be exempt from any criminal prosecution for the offense to which the inquiry relates.

All these propositions are decided by the supreme court of the United States upon an exhaustive review of the authorities in the case in Counselman v. Hitchcock, 142 U. S. 547, a case in every essential particular identical with this.

There is no law of this state which would have exempted the petitioner from a criminal prosecution for fraudulent concealment of his property, if his answers to the questions put to him had tended to convict him of the offense, and, therefore, we repeat he could not be compelled to answer. But the superior court held otherwise, ordered him to answer the questions, and, upon his persistent refusal to answer, committed him to the county jail for contempt of court. The imprisonment is illegal, and the prisoner must be discharged. It is so ordered.

McFarland, J., Van Fleet, J., Fitzgerald, J., and Garoutte, J., concurred.