Ex parte Cohen

26 L.R.A. 423, 38 P. 364, 104 Cal. 524, 1894 Cal. LEXIS 949

• Court: California Supreme Court
• Decided: November 24, 1894
• Docket: No. 21180
• Status: Published

Opinion

Harrison, J.

While Louis Steinberger was under examination before the Hon. W. T. Wallace, one of the judges of the superior court of San Francisco, sitting as a committing magistrate, in which said Steinberger was charged with a felony in “ having willfully caused, procured, and allowed one Louis Cohen to be registered upon the precinct register of the first precinct of the forty-third assembly district of the state of California in the city and county of San Francisco, state of California, knowing said Louis Cohen not to be entitled to such registration,” the petitioner was called as a witness on the part of the people, and, having been sworn as such witness, was asked the following questions, viz:

“ Q. Mr. Cohen, where do you reside?

“ Q. On the third day of October, 1894, where did you reside?

“ Q. Do you know the defendant, Louis Steinberger?

“ Q. Did you have any conversation with Mr. Stein-berger on the third day of last October respecting your going and procuring yourself to be placed upon the great register of this county?

“ Q. Or the precinct register of this city and county?

“ Q. Did you register or procure your name to be placed upon the precinct register of the first precinct of the forty-third assembly district on the 3d of last October?

“Q. Were you present at the Baldwin Hotel with Mr. Steinberger on the third day of October?

“Q. At Mr. Steinberger’s direction did the clerk of the Baldwin Hotel furnish you with a key to a certain room in the hotel? ”

The witness refused to answer each of these questions as they were propounded to him, on the ground that his answer might incriminate him, whereupon the judge stated to him: “ It is a legal impossibility in this case to expose yourself by your testimony here. I instruct you that you are bound to answer. You must answer.” But, notwithstanding such direction, the witness still refused to answer, and was thereupon adjudged guilty of contempt, and ordered to be imprisoned in the common jail of the city and county of San Francisco, until he answer said questions and each of them before said judge.

The right of the legislature to determine who shall be competent witnesses to establish any fact under judicial examination, and to compel the attendance of such witnesses, cannot be disputed. Every person is subject to the power of the legislature to compel him in any judicial proceeding to give testimony of any fact within his knowledge and material to the issue, except in so far as the constitution restrains the legislature from exercising this power, or protects the individual from a compulsory compliance with its attempted exercise. The constitution of this state has limited the extent to which the legislature may exercise this power, and has given to the individual a protection against its exercise by providing in article I, section 13, that “no person shall be compelled in any criminal case to be a witness against himself.” It is needless to review the history and development of this provision. It is an outgrowth of the common law of England, and almost at the commencement of our present government was incorporated into the national constitution, and is found in the constitution of every state in the country. The object of the provision is the immunity of the individual from compulsory self-accusation. This immunity is, however, to be limited to the purpose for which it is given, viz., the protection of the witness from being compelled to furnish any evidence from which he may be subjected to prosecution or punishment, and is not to be extended so as to include an exemption from being compelled to give evidence that could not under any circumstances tend to his conviction of an offense against the laws of the state.

The provision that a person shall not be compelled “in a criminal case” to be a-witness “against himself” is to be construed as protecting him from being compelled to give any evidence which in a criminal prosecution against himself might in any degree tend to establish the offense with which he may be charged. It is only when his evidence may tend to establish an offense for which he may be punished under the laws of the state that he is a witness “against himself” in a criminal case. The “criminal case” in which he is a witness need not be against himself, but Ms immunity from compulsion extends to all evidence which may be used in any criminal case against himself, under whatever circumstances such evidence maybe sought; but the fact that in a proceeding in which he is not the defendant his testimony may tend to show that he has violated the laws of the state, is not sufficient to entitle him to claim this protection of the constitution, unless he is at the same time liable to prosecution and punishment for such violation. If, at the time of the transactions respecting which his testimony is sought, the acts themselves did not constitute an offense, or, if, at the time of giving the testimony, the acts are no longer punishable; if the statute creating the offense has been repealed; if the witness has been tried for the offense and acquitted, or, if convicted, has satisfied the sentence of the law; if the offense is barred by the statute of limitations, and there is no pending prosecution against the witness, he cannot claim any privilege under this provision of the constitution, since his testimony could not be used against him in any criminal case against himself, and consequently he is not compelled to be a witness “ against himself.” Equally is he deprived of claiming this exemption from giving evidence if the legislature has declared that he shall not be prosecuted or punished for any offense of which he gives evidence. Any evidence that he may give under such a statutory direction will not be “against himself,” for the reason that by the very act of giving the evidence he becomes exempted from any prosecution or punishment for the offense respecting which his evidence is given. In such a case he is not compelled to give evidence which may be used against himself in any criminal case, for the reason that the legislature has declared that there can be no criminal case against him which the evidence which he gives may tend to establish.

Section 32 of the Purity of Election Law (Stats. 1893, p. 26), under which the examination of Steinberger was had, provides: “A person offending against any provision of sections .... [enumerating certain sections of the act] is a competent witness against another per* son so offending, and may be compelled to attend and testify upon any trial, hearing, proceeding, or lawful investigation or judicial proceeding, in the same manner as any other person. But the testimony so given shall not be used in any prosecution or proceeding, civil or criminal, against the person so testifying. A person so testifying shall not thereafter be liable to indictment or presentment by information, nor to prosecution or punishment for the offense with reference to which his testimony was given, and may plead or prove the giving of testimony accordingly in bar of such indictment, information, or prosecution.” This section is taken from the statute of New York, known as the Corrupt Practices Prevention Act, and is also found in the English statute upon the same subject; and the closing paragraph of the section is also found in the statutes of New York passed in 1869 for the punishment of bribery, and subsequently incorporated in section 79 of the Penal Code of that state. Statutes containing similar provisions have been passed in many of the states of this country for the purpose of securing conviction for offenses in which two or more persons are required to participate in order to constitute the offense, such as bribery, gambling, dueling, usury, selling intoxicating liquors, and others; the legislatures doubtless considering that the offense would be effectually suppressed if one of the offenders only could be punished, and for that purpose making his participant in the offense a competent witness by exempting him from punishment. In the greater number of these statutes the provision of exemption was that the testimony should not be used against the witness; and prior to the decision in Counselman v. Hitchcock, 142 U. S. 547, in 1891, the decisions under these statutes were nearly uniform that this was a sufficient immunity; but under the rule laid down in that case such a provision does not meet the requirements of the constitution, and unless there be an absolute immunity from all punishment for any offense respecting which the witness may be called upon to testify, he may claim the protection of the constitution against being compelled to give evidence against himself. Rulings similar to that in Counselman v. Hitchcock, 142 U. S. 547, had been previously made in Emery’s case, 107 Mass. 172, 9 Am. Rep. 22, and in Cullen v. Commonwealth, 24 Gratt. 624. The same principle was established in this state in Ex parte Clarke, 103 Cal. 352. In State v. Nowell, 58 N. H. 314, it was held under the provisions of a statute that the evidence given by a witness should not be used against him, and that he should not be thereafter prosecuted for any offense so disclosed by him; that this exemption gave him all the protection which was guaranteed by the constitution, upon the ground that his legal- immunity from prosecution was equivalent to his legal innocence of the crime disclosed by his testimony.

A statute is to be construed with reference to its manifest object, except as such object may be defeated by the language of the statute itself. The language used is not to be enlarged beyond its ordinary construction for the purpose of effecting such object, nor, on the other hand, is it to receive such a technical or limited construction as will defeat the manifest purpose of the statute. If the language is susceptible of two constructions, one of which will carry out and the other will defeat such manifest object, it should receive the former construction. So, too, if a statute is susceptible of two constructions, one of which is consistent with the- constitution, and the other repugnant thereto, it should be so construed as to be effective rather than void. Any statute involving a personal privilege or right conferred upon an individual by the constitution is to be liberally construed in favor of the individual. The manifest object of section 32 aforesaid is to secure evidence for the conviction of offenders against the provisions of the other sections of the statute which are enumerated therein; but it is only upon a “trial, hearing, prosecution, lawful investigation, or judicial proceeding” against another person for offending against the provisions of those enumerated sections, that a witness, who has himself offended against these provisions of the sections, can be compelled to testify. The offenses referred to in the enumerated sections are those against the purity of election which require the co-operation of two or more persons, and the provision that one of these parties offending may be compelled to give testimony would be nugatory, in view of his constitutional protection, unless the legislature had at the same time furnished him with a shield for any offense with reference to which he would be compelled to testify.

By. the provisions of this section the petitioner has the full protection guaranteed to him by the constitution against any self-accusation of crime. In addition to providing that his testimony shall not be used against him, it is declared that he shall not thereafter be liable to indictment or presentment by information, nor to prosecution or punishment “for the offense with reference to which his testimony was given,” and that he may plead or prove the giving of testimony in bar of such indictment, information, or prosecution. The immunity thus given includes not only the offense with which the defendant then under examination is charged, and in which the witness was a participant with such defendant, but also any other offense with which the witness may be charged, and to which such testimony may have reference or which it may tend to establish. “The offense with reference to which his testimony was given” is broader in its terms and has a wider scope than “the offense with which the defendant is charged,” and the exemption from prosecution or punishment consequent upon his giving testimony in reference thereto, when considered in view of the personal privilege given by the constitution, must receive a liberal construction in its favor. The statute purports to compel him to testify “in the same manner as any other person,” and as the equivalent for his constitutional protection gives him a legislative protection of equal scope and effect by exempting him from all liability to punishment for the offense with reference to which he testifies. The exemption is as broad as the compulsion, and the protection is equal to that given by the constitution. The testimony which he may be compelled to give is the same as that which could be required of any other witness, and includes any matter within his knowledge which is relevant to the offense under investigation and material to its determination. If, in giving such testimony, the testimony has reference to another offense committed by himself, he is within the protection of the statute, and upon any prosecution for such offense is authorized to plead or prove in bar thereof that under the compulsion of this section he gave testimony with reference to such offense.

We hold, therefore, that the petitioner should have answered the questions propounded to him, and that he was rightly adjudged guilty of contempt in refusing to answer them.

The writ is discharged and the petitioner remanded.

Garoutte, J., and McFarland, J., concurred.