Ex parte Senior

37 Fla. 1

• Court: Supreme Court of Florida
• Decided: January 15, 1896
• Status: Published

Opinion

Mabry, C. J.:

The return of the sheriff to the writ of habeas corpus shows that on the 17th day of February, 1896, pending the trial of a case in quo warranto proceedings instituted in the name of the Attorney-General on the relation of William E. Anderson against Pat. McHugh—the'issue being whether the said Anderson or McHugh had received the highest number of votes at an election for Mayor of the city of Pensacola held in said city on the 4th day of June, 1895—the petitioner, Ed. Senior, Jr., was called and sworn as a witness for respondent McHugh, and having been advised by the court that he need not testify to any fact tending to convict him of crime, testified, in reply to questions by respondent’s counsel, that he voted at said election, in election precinct 18, for Pat. McHugh for Mayor, and that his ballot was received by the inspectors. Thereupon, being turned over to the State for cross-examination, the following questions were propounded to said witness, mz :

Where were you living at the time you cast your ballot ?

How long had you been living at that place ?

At what place were you living at the time of the last city election ?

Did you have a certificate of registration?

Where were you born ?

Were you born in the United States ?

Did you ever take out any naturalization papers ?

Are you twenty-one years of age ? -

How long have you been living in the State of Florida ?

How long have you been living in the county of Escambia ?

How long have you been living in the city of Pensacola ?

Were you ever registered ?

Did you take any oath ?

Thereupon he refused to answer either of said questions, upon the ground that the answers would tend to criminate him, and the court deciding that the witness should answer the questions, and ordering him to-make answers thereto, and still persisting in his refusal, ' he was adjudged to be in contempt of court, and ordered to pay a fine and stand committed in the-custody of the sheriff until the fine was paid. Upon the refusal of the witness to pay the fine, he was taken into custody by the sheriff, and still remaining in custody, has sued out a writ of habeas corpus and asks to be discharged.

A suggestion comes in limine from counsel opposed to the writ that the court will not review, on habeas corpus, an order made by the Circuit Court adjudging a person guilty of contempt! Reference is made to-the decision in Caro vs. Maxwell, 20 Fla. 17, holding; that a contempt order will not be reviewed on appeal or writ of error, and also to the language used in Ex parte Edwards, 11 Fla. 174, ‘ 'that in the absence of any statutory limitations or restrictions, the power of the severál courts over contempt is omnipotent, and its exercise is not to be enquired into by any other tribunal. This is the great bulwark established by the common law for the protection of courts of justice, and for the maintenance of their dignity, authority and. ■efficiency, and neither in England nor in the United States has this unrestricted power been seriously questioned.” The first case referred to has no application here, as we have no writ of error or appeal to review an order of a Circuit Court in a contempt matter. The rule announced in the second case is not now questioned, but its application must be confined to proper limits. As a general rule habeas corpus does not lie to correct mere irregularities of procedure where there is jurisdiction, and in order to sustain the writ there must be illegality or want of jurisdiction. Ex parte Pitts, 35 Fla. 149, 17 South. Rep. 96; Ex parte Prince, 27 Fla. 196, 9 South. Rep. 659; Ex parte Bowen, 25 Fla. 214, 6 South. Rep. 65. When a person has been taken into custody under an order of a court exercising proper jurisdiction, a habeas corpus to discharge the person so taken involves a collateral attack on the order under which he is held, and well established rules forbid an investigation into matters of mere irregularity in procedure. But illegality in matter of law or want of jurisdiction may be inquired into and the decision of the lower ‘court, as to such matter, is not conclusive. The following language taken from People ex rel. Hackley vs. Kelly, 24 N. Y. 74, a contempt proceeding, is expressive of our view on the subject, viz: “But this rule is of course subject to the •qualification, that the conduct charged as constituting the contempt must be such that some degree of delinquency or misbehavior can be predicated of it; for if the act be plainly indifferent or meritorious, or if it be only the assertion of the undoubted right of the party, it will not become a criminal contempt by being adjudged to be so. The question whether the alleged offender really committed the act charged, will be conclusively determined by the order or judgment of the court; and so with equivocal acts, which may be culpable- or innocent according to the circumstances; but where the act is necessarily innocent or justifiable, it would be preposterous to hold it a cause of imprisonment. Hence, if the refusal of Mr. Hackley, the relator, to answer the question propounded to him, was only an assertion of a right secured to every person by the Constitution, it was illegal to commit him for a contempt.” It cannot certainly be true that the decision of an inferior court adjudging a matter to be a contempt precludes all investigation as to the legality or proper authority of the court to make such order; and on the other hand, it must not be forgotten that in such matters when the court is acting within the sphere of its legitimate powers the appellate tribunal will not undertake to review the correctness of conclusions as to matters of fact or questions of mere procedure. In re Dill. 32 Kansas, 668.

In the present case there was a refusal to answer questions propounded in open court during the trial of a cause within the jurisdiction of the Circuit Court to. hear and determine, and the refusal was placed upon the ground that the answers to the questions would tend to criminate the party to whom the questions were propounded. If, under the circumstances disclosed by the record, the party questioned had a clear constitutional or legal right to insist on his privilege not to answer the questions on the ground stated, it would be illegal to adjudge him in contempt for refusing to answer, and hence it becomes necessary for us to see if such right of privilege as claimed in the Circuit Court did exist as a matter of law. The ground of the refusal to answer the questions propounded was that the answers thereto would tend to criminate the petitioner, and what we have to say in this opinion will be confined to such ground of privilege.

It is an ancient maxim of the law that no man shall be compelled to criminate himself. The origin and necessity of this maxim, as others of the common law, grew out of conditions found in the early history of English jurisprudence in reference to the administration of criminal law, and which, it- must be admitted, evince many traces of cruelty and barbarity. There was a time when suspected persons were not only deprived of an opportunity to have witnesses produced in their favor, and of the advice and aid of counsel, but were put to torture for the purpose of extorting from them confessions of guilt, or statements which could be used in securing their convictions. Securing the conviction of even suspected persons by such means, justly became odious, and we find the humanity of the common law proclaiming that no man shall be compelled to criminate himself—nemo tenetur se ifsumproclere. This principle of the common law was fully recognized in this country when the formation of governments began, and we find it imbedded in the National and all the State Constitutions that we have examined. In our Constitution it is found in the twelfth section of the Bill of Rights, that “no person shall be subject to be twice put in jeopardy for the same offense, nor 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 without just compensation.” The provision, that no person shall be compelled in any criminal case to be a witness against himself, should be broadly and liberally construed to secure the' protection designed to be accomplished by it, and to this end no technical limitation should be placed upon the terms employed. The terms “in any criminal case” might on casual reading be taken to (¡online the protection against- self-accusation to investigations in criminal cases, but such is not the true meaning. Our constitutional provision is the same as those foitnd in the constitutions of the United States and of the State of New York, as well as other States, and the cases of Counselman vs. Hitchcock, 142 U. S. 547, 12 Sup. Ct. Rep. 195, Book 35 Co-op. ed. 1110, and People ex rel. Taylor vs. Forbes, 143 N. Y. 219, 38 N. E. Rep. 305, clearly demonstrate that a broad and liberal construction of such provisions should obtain in furtherance of the right sought to be secured. In the first case cited it is said that the privilege is limited to criminal matters, but it is as broad-as the mischief against which it seeks to guard. “The object was to insure that a person should not be compelled, when acting as a witness in an investigation, to give testimony which might tend to show that he himself had committed a crime.” In the New York case, after stating that the matter had frequently been adjudicated both in the Federal and State courts, the following language is used, viz: “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 he may then or afterwards be charged, or the sources from which or the means by which evidence of its com mission, or of Ms connection with it, may be obtained.” A witness is exempt by his privilege from answering not only what will criminate him directly, but also what has any tendency to criminate him, the reason being, as stated by Phillips on Evidence, vol. 2, p. 929, “because otherwise question might be put after question, and though no single question may be asked which directly criminates, yet enough, might be got from him by successive questions whereon to found against him a criminal charge.” In, showing the extent of the immunity which a witness is entitled to claim, the following language used by Chief-Justice Marshall, on the trial of Aaron Burr, has often been quoted, viz: “Many links frequently compose that chain of testimony which is necessary to convict an individual of a crime. It appears to the court to be the true sense of the rule that no witness is compelled to furnish any one of them against himself. It is certainly not only a possible, but a probable, case that a witness by disclosing a single fact may complete the testimony against himself, and to a very effectual purpose accuse himself as entirely as he would by stating every circumstance which would be required for his conviction. That fact of itself would be unavailing, but all other facts without it would be insufficient. While that remains concealed in his own bosom he is safe, but draw it from thence and he is exposed to a prosecution. The rule that declares that no man is compellable to accuse himself would most obviously be infringed by compelling a witness to disclose a fact of this description.”

The authorities agree that the right of privilege against compelling disclosure of incriminatory evidence is personal to the witness, he alone being entitled to invoke its protection, and that it may be waived by him. Whether the court or the witness has the right to determine the question of privilege, or to what extent the claim of privilege is left to the determination of the witness, has not been so uniformly stated in the decisions. It has never been recognized that he alone has the right in all cases to decide whether his answer will tend to criminate him. Such .a rule would be mischievous and enable unscrupulous witnesses‘to defeat the ends of justice in many cases. The privilege must be claimed in good faith, and not •as a shield to defeat justice. It was held in Regina vs. Boyes, 1 B. & S. 311, that to entitle a witness to the privilege of silence “the court must see from the circumstances of the case and the nature of the evidence which he is called to give, that there is reasonable ground to apprehend danger to the witness from his being compelled to answer. Moreover the danger to be apprehended must be real and appreciable with reference to the ordinary operations of law in the ordinary course of things.” The New York court, in People vs. Mather, 4 Wend. 229, stated the right of privilege to be that when the witness .“claimed to be excused from answering the court: are to determine whether the answer he may give to the question can criminate him directly, or indirectly, by furnishing •evidence of his guilt, or by establishing one of many facts, which together may constitute a chain of testimony sufficient to warrant his conviction, but which •one fact of itself could not produce such result, and if they think the answer may' in any way criminate him, they must allow his privilege, without exacting from him to explain how he would bé criminated by the answer which the truth may oblige him to give.” To require the witness to explain how his answer would -criminate him would, of course, expose him to the very danger, against which the privilege was designed to protect him. In People ex rel. Taylor vs. Forbes, supra, it is said that “the 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 could not injure him, or tend in any degree to subject him to the peril of prosecution. Rut 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 can not incriminate, as to preclude all reasonable doubt or fair argument, the privilege must be recognized and protected.” While the witness must judge of the effect of his answer, and should not be required to explain how it will criminate him, yet the court must determine under ail the circumstances of the case whether such will be its tendency from the question asked, and where from, the nature of the investigation and the character of the testimony sought, it reasonably appears that the answer may criminate or tend to criminate, the witness has the right to claim his privilege, and is not bound to answer. State vs. Duffy, 15 Iowa, 425; Kirschner vs. State, 9 Wis. 140; Chamberlain vs. Wilson, 12 Vt. 491, S. C. 36 Am. Dec. 356; Ex parte Boscowitz, 84 Ala. 463, 4 South. Rep. 279.

As stated above, the witness may waive his privilege, but to what extent he is held to waive it by consenting to answer some questions, or at what stage of an examination he must insist on his privilege in order to avoid a waiver, is a. matter in reference to which there is some considerable confusion in the application of the rule to the various cases. Mr. Phillips, in referring to the early decisions in England, says, in substance, that from the nature of the right a witness by consenting to answer some questions ought not to be barred from the'right of objecting to others, but that he should not be allowed, by any arbitrary use of his privilege, to make a partial statement of facts to the prejudice of either party. And upon this principle it was ruled in Dixon vs. Vale, 1 Car. & P. 278, and East vs. Chapman, 2 Car. & P. 570, that if a witness waive his privilege so far as to answer part of the questions tending to subject him to an indictment, he can not be exempted from answering the remainder, but must give the whole truth. He further states that .a majority of the Judges, in Regina vs. Garbett, 2 Car. & Kir. 474, S. C. 1 Dennison’s Cr. Cas. 236, thought that it made no difference to the right of the witness to protection, that he answered in part, but that he was entitled to it at whatever stage of the inquiry he chose to claim it, and that they did not consider themselves bound by the cases cited. 2 Phillips on Evidence, 935. Garbett’s case was decided in 1847, and the question arose in a criminal prosecution against the accused upon the introduction, on the part of the Crown, of his testimony on a cross-examination in a civil suit. The accused had gone a long way in his testimony towards opening up the matter in reference to which he was being prosecuted, but he refused to answer some questions pointing directly 'to his guilt and frequently put himself in the hands of. the court for protection. The testimony was rejected in the criminal case, and several of the most eminent judges dissented. In the later editions of Greenleaf, the ruling in Garbett’s case is adopted. 1 Greenleaf on Evidence, section 451.

The American rule, following to some extent the early English cases, is said to be the other way, and that if a witnéss discloses a part of a transaction or conversation tending to criminate Mm, he waives his' privilege and must answer freely, and disclose the-whole transaction or conversation, unless the partial disclosure is made under an innocent mistake, or does-not clearly relate to the transaction as to which he refuses to testify. In Low vs. Mitchell, 18 Maine, 372, it was held that if the witness consents to testify to one-matter -tending to criminate himself, he must testify in all respects relating to that matter, so far as material to the issue; that if he waives the privilege, he-does so fully in relation to that act, but he does not thereby waive his privilege of refusing to reveal other unlawful acts, wholly unconnected with the act of which he has spoken, even though they may be material to the issue.

It seems to us that it is a just and correct rule that if a witness, with full knowledge of his rights, consents to testify about -the very matter that may criminate him, without claiming his privilege, he must submit to-a full, legitimate cross-examination in reference thereto. Otherwise a witness would have it in his power to make a partial statement of a matter to the detriment of one party without any adequate means of relief. The following authorities bear on the subject: Foster vs. Pierce, 11 Cush. 437, S. C. 59 Am. Dec. 152; Commonwealth vs. Price, 10 Gray, 472, S. C. 71 Am. Dec. 668; Commonwealth vs. Pratt, 126 Mass. 462; Commonwealth vs. Trider, 143 Mass. 180, 9 N. E. Rep. 510; State vs. K., 4 N. H. 562; Amherst vs. Hollis, 9 N. H. 107; State vs. Foster, 23 N. H. 348, S. C. 55 Am. Dec. 191; Coburn vs. Odell, 30 N. H. 540; Chamberlain vs. Wilson, 12 Vt. 491, S. C. 36 Am. Dec. 356; Norfolk vs. Gaylord, 28 Conn. 309; People vs. Freshour, 55 Cal. 375; State vs. Nichols, 29 Minn. 357; Foster vs. People, 18 Mich. 266; Lombard vs. May-berry, 24 Neb. 674, 40 N. W. Rep. 271; 2 Phillips on Evidence, p. 929 et seq.

In Counselman’s case, supra, he was examined before a grand jury, and in reply to' questions stated that he was a grain dealer, and had shipments of grain over certain lines of railroad. When interrogated as to rates of' freight secured less than the tariff or open rate, and as to rebates, he refused to answer. While freely admitting that he received freights over certain lines he stated that he did not recollect of shipping over other lines mentioned. It was not insisted on the part of the government that the witness had waived his privilege by answering some questions, and the court makes no reference to this matter in its opinion, but, as the party was discharged, it is evident that the court did not consider he had waived his privilege. The privilege claimed in the case of People ex rel. Taylor vs. Forbes, supra, was also in an examination before a grand jury when the conduct of students at Cornell University was being investigated. The witness, who was a student, answered that he had no connection whatever with the transaction being investigated, but when questioned as to particular facts connected with it, he claimed his privilege and refused to answer. The court was of the opinion that the witness by answering the general questions as to his connection with the affairs, whether his answers were true or false, did not waive his right to remain silent when it was sought to draw from him some fact or circumstance which in his judgment might form another link in the chain of facts, capable of being used under any circumstances to his detriment. Under the peculiar surroundings of that investigation it presented a case,, in the judgment of the court, where the witness might claim his privilege as to-collateral circumstances that tended to imperil him. The question presented in Amherst vs. Hollis, supra, was whether or not a certain person was a pauper, and therefore a charge upon a town. The witness stated that he was destitute of property during the time for which the charge was made, and upon further inquiry admitted that he had considerable money three or four, years previously, but that the money had gone to adjust matters which he could not disclose without exposing himself to criminal prosecution. After admitting the rule that a witness should not be compelled to criminate himself, and observing that there were cases in which a witness could not be heard to relate a part of a transaction, and refuse to disclose the rest, the court held that the testimony sought to be elicited, although not entirely independent of the facts the witness had testified about, was so far distinct that he was authorized to claim the privilege. The court said that “when asked, in the first place, if he was destitute of property, there is no obvious propriety in his alleging that he could not disclose that without subjecting himself to a prosecution. If he had gone on to speak in part of the disposition that had been made of his property, it might have presented a different case.” The cases present illustrations of witnesses testifying in part without being fully advised of their danger and right of privilege, and of the allowance of the privilege by the court after the witness was informed on the subject. The court should inform the witness of his rights when the circumstances of the case call for it, and there are instances where the privilege has been allowed after the witness had spoken, when it was evident that he had spoken in ignorance of his rights, and in such cases all the testimony, as to which a full examination could not be allowed, may be stricken out.

There is also, it appears, a distinction between the case of a witness proper and an accomplice or a party in interest. An accomplice admits his guilt and seeks to implicate others, and it is not apparent why he should claim immunity from exposure.about the very matter which he is willing to confess. As to distinct collateral matters it may be different. When a party in interest volunteers to testify in his own behalf, the rule seems to be not so liberal in his favor as in the case of a disinterested witness who is summoned to testify in controversies between others. Statutes have been passed in several of the States, as was done here at the last session of the Legislature, permitting defendants to testify in their own behalf, and under such statutes, when the defendant elects to testify, the question arises as to the extent he must submit to a full cross-examination. Statutes have also been enacted in several States providing that witnesses shall be required to testify in certain cases, and when they do so, that their statements shall not be used against them in any subsequent prosecution. There is a review of the decisions under such statutes in Counsel-man’s case. We have no statute on the subject, so far as the present case is concerned. All we know of the proceeding in which the claim of privilege was insisted on in the present case is, that petitioner was called and ' examined as a witness for the respondent in a qioo warranto case involving the right to the office of Mayor of the city of Pensacola under the recent election held for that purpose on the 4th of June last. The petitioner, after being fully advised of his rights, testified that he voted for respondent in the quo warranto case, and that his ballot was received by the inspectors. It is not questioned here, and we must assume it to be the fact, that the testimony voluntarily given by the witness was admissible and material in the case. The office of Mayor of the city of Pensacola is elective, and the election held in June, 1895, was conducted under the general law governing State elections existing at the last State election. Section 2787 Rev. Stat. provides that “whoever casts knowingly an illegal vote at ■ any election in this State held, according to law, shall be punished by-imprisonment in the State prison not exceeding six months, or by fine not exceeding one hundred dollars.” The provisions of this statute are broad enough to cover illegal voting at municipal elections, and one who knowingly cast an illegal vote at the election in -question would, be subject to the penalties of the statute. No question is made of this in the present case, nor is it doubted that a voter at said election when called onto testify as to voting would be entitled to the privilege of silence if his testimony would tend to bring upon him the penalties of the statute. State ex rel. Hopkins vs. Olin, 23 Wis. 309. The petitioner, then, was not compelled to state whether he voted at all attire election in question, if his answers would tend tocriminate him, but, after being duly advised by the court, he voluntarily stated that he voted and for1 whom he voted. This statement, in the absence of •any other showing, tended to establish the fact of a valid vote for the party fpr whom the ballot was cast, and it also included the principal or essential crimi- ■ nating charge against the voter, if he, as a matter of fact, had knowingly voted when he did not possess the requisite qualifications. Whether or not th^ vote was legal and entitled to be counted depended upon prescribed qualifications of the voter, and we are of the opinion that a proper application of the rule demands, that the petitioner should answer the questions touching his qualifications as a voter .after he had willingly stated that he had voted at the election. It is a just and reasonable requirement that a witnes's shall not be allowed, by an arbitrary use of his privilege, to make a partial statement of facts to the prejudice of either party to the suit. It is stated in State ex rel. Hopkins vs. Olin, supra, that a person who has voted at an election is always considered as a party when the result of theelection is in controversy, and from this standpoint the rule as to subjecting interested parties-to a full cross-examination would have more or less. effect.

The strongest authority relied on for petitioner is-the decision in Counselman’s case, but we think there is a clear distinction between that case and the present one. The matter testified about by Counselman— shipping of grain over railroads—was not criminal,, nor did it contain any elements of criminality. The crime consisted in paying a less freight than the tariff. or open rate, and when asked about this matter he refused to disdose anything about it. He stopped on the border of the criminating matter, and the case presented no ground of waiver of privilege as to such matter. The distinction is sharply drawn in the pauper case from New Hampshire. If petitioner was not-a qualified person to vote at the. city election, the crime of illegal voting was consummated in the act of casting his ballot, which is the principal criminating act, and having gone into this matter with full knowledge, he should state the matters tending to develop his qualifications as a voter.

Our conclusion is, that the petitioner should be remanded to the custody of the sheriff of Escambia ■county. Order to be entered accordingly.