Bushnell, J.
On jury trial defendant Clinton Woodson was convicted of the statutory offense of perjury (Act No. 328, § 422, Pub. Acts 1931 [penal code] [Comp. Laws Supp. 1940, § 17115-422, Stat. Ann. § 28.664]) and sentenced to prison for a term of 2 to 15 years. His motion for a new trial was denied and, having obtained' leave, he appeals.
In December, 1939, defendant was called as a witness before Judge Homer Ferguson, sitting as a one-man grand jury engaged in the investigation of gambling and other offenses in Wayne county. Chester P. O’Hara (later appointed special prosecutor) was then acting as
amicus curiae
to said grand jury. After defendant was sworn, the following took place:
“Q.
(By Mr. O’Hara) You have been engaged in operating a policy game in this town?
“A.-
I refuse to answer for fear it might incriminate myself. * * *
“Mr. O’Hara:
I ask the court to grant this man immunity under the statute, and require him to answer the questions put to him, the same as though they were reduced to writing, pursuant to the statute, so that he will not be prosecuted for any answers that he gives on this record.
“The Court:
The law provides that when you claim a privilege that way, the court can grant you immunity. Now according to the statute in this case
made and provided
the court does now grant you immunity the same as if each of these questions was in writing, and your answer in writing; now the court must require you, after granting you this immunity, that you answer the questions;
now when they ask you similar questions that might incriminate you, I will take it that you are claiming the same privilege, and I am now granting you immunity on all the questions and all the answers in this record. So now you must answer.”
Following such purported grant of immunity, defendant was questioned and testified at considerable length regarding gambling and other offenses.
In October, 1941, defendant was called as a witness for the prosecution in the case of
People
v.
Roxborough,
then being tried in the circuit court for Wayne county
(People
v.
Roxborough,
307 Mich. 575). He testified under oath relative to the same matters about which he had given testimony before the grand jury. Subsequently he was arrested and charged with having committed perjury in giving false testimony in the
Roxborough Case.
In proof of the perjury charge, the prosecution introduced in evidence, without objection by defendant, the court reporter’s transcripts of defendant’s testimony before the grand jury and in the
Roxborough Case,
and portions of such transcripts, were read to the jury. It appeared that certain parts of his testimony in the
Roxborough Case
were contrary to and in conflict with his grand-jury testimony on the same subjects.
It is admitted that in granting defendant immunity against self-incrimination, the grand jury did not comply with the provisions of 3 Comp. Laws 1929, § 17220 (Stat. Ann. § 28.946), which provides:
“No person shall upon such inquiry be required to answer any questions the answers of which might
tend to incriminate Mm except upon motion in writing by tbe prosecuting attorney which shall be granted by such justice or judge, and any such questions and answers shall be reduced to writing and entered upon the docket or journal of such justice or judge, and no person required1 to answer such questions upon such motion shall thereafter be prosecuted for any offense concerning which such answers may have tended to incriminate Mm. ’ ’
As hereinbefore shown, defendant was granted immunity upon the oral motion of Mr. 0 ’Hara, who was appearing as
amicus curiae
to the grand jury. The motion was not “in writing by the prosecuting attorney” as required by the above statute
(In re Wyrick,
301 Mich. 273;
In re Hickerson,
301 Mich. 278). The record does not show whether or not the questions and answers before the grand jury were “reduced to writing and entered upon the docket or journal” of the judge. However, it does appear that they weré taken down by a court reporter and transcribed.
Defendant contends that the grant of immunity was illegal because not in compliance with the statute; that he was compelled to testify by the grand jury and, therefore, his testimony was not voluntary; and that such testimony could not be used against Mm in his subsequent trial for perjury. In support of Ms contention defendant cites
In re Wyrick, supra,
and
In re Hickerson, supra.
In each of those cases a justice of the peace of the Pontiac municipal court was conducting a judicial investigation, in pursuance of 3 Comp. Laws 1929, § 17217
et seq.
(Stat. Ann. §28.943
et seq.).
He appointed an attorney to assist in the examination of witnesses and in the conduct of such investigation. The respective defendants were subpoenaed and asked certain questions, which they refused to answer on
the ground that their answers might incriminate them. The attorney appointed filed written motions to grant them immunity, and immunity was granted by the justice. They again refused to answer and were found guilty of contempt and1 sentenced. On review, the circuit court upheld the validity of the immunity granted. Both defendants then appealed, contending in substance that they were not required to answer the questions propounded, because their immunity was not granted upon motion of the prosecuting attorney, as required by the statute. In each case we held that the defendant was not guilty of Contempt and should be released' from custody. In the
Wyrick Case
we said:
“The right to grant immunity is found in the statute hereinbefore cited (3 Comp. Laws. 1929, §17220). An examination of this statute clearly leads to the conclusion that the making of a motion to grant immunity must he left to the discretion of the State’s representative. The State has wisely provided that this power should lie in the discretion of the prosecuting attorney or the attorney general in certain cases. It follows that the trial court was in error in affirming the action of the justice of the peace in granting immunity upon the motion of one not a prosecuting attorney or attorney general or the duly authorized representative thereof.”
In the
Kicker son Case
we said:
“The language of the statute, in providing that the motion shall he made by the prosecuting attorney, is mandatory in tone.
*
*
“A power of such importance should be exercised only by those whose sworn duty it is, as public officers, in this case the prosecuting attorney or attorney general, to enforce the criminal laws.”
It should be noted that in the ahove-diseussed cases the witnesses, after being granted purported
Free access — add to your briefcase to read the full text and ask questions with AI
Bushnell, J.
On jury trial defendant Clinton Woodson was convicted of the statutory offense of perjury (Act No. 328, § 422, Pub. Acts 1931 [penal code] [Comp. Laws Supp. 1940, § 17115-422, Stat. Ann. § 28.664]) and sentenced to prison for a term of 2 to 15 years. His motion for a new trial was denied and, having obtained' leave, he appeals.
In December, 1939, defendant was called as a witness before Judge Homer Ferguson, sitting as a one-man grand jury engaged in the investigation of gambling and other offenses in Wayne county. Chester P. O’Hara (later appointed special prosecutor) was then acting as
amicus curiae
to said grand jury. After defendant was sworn, the following took place:
“Q.
(By Mr. O’Hara) You have been engaged in operating a policy game in this town?
“A.-
I refuse to answer for fear it might incriminate myself. * * *
“Mr. O’Hara:
I ask the court to grant this man immunity under the statute, and require him to answer the questions put to him, the same as though they were reduced to writing, pursuant to the statute, so that he will not be prosecuted for any answers that he gives on this record.
“The Court:
The law provides that when you claim a privilege that way, the court can grant you immunity. Now according to the statute in this case
made and provided
the court does now grant you immunity the same as if each of these questions was in writing, and your answer in writing; now the court must require you, after granting you this immunity, that you answer the questions;
now when they ask you similar questions that might incriminate you, I will take it that you are claiming the same privilege, and I am now granting you immunity on all the questions and all the answers in this record. So now you must answer.”
Following such purported grant of immunity, defendant was questioned and testified at considerable length regarding gambling and other offenses.
In October, 1941, defendant was called as a witness for the prosecution in the case of
People
v.
Roxborough,
then being tried in the circuit court for Wayne county
(People
v.
Roxborough,
307 Mich. 575). He testified under oath relative to the same matters about which he had given testimony before the grand jury. Subsequently he was arrested and charged with having committed perjury in giving false testimony in the
Roxborough Case.
In proof of the perjury charge, the prosecution introduced in evidence, without objection by defendant, the court reporter’s transcripts of defendant’s testimony before the grand jury and in the
Roxborough Case,
and portions of such transcripts, were read to the jury. It appeared that certain parts of his testimony in the
Roxborough Case
were contrary to and in conflict with his grand-jury testimony on the same subjects.
It is admitted that in granting defendant immunity against self-incrimination, the grand jury did not comply with the provisions of 3 Comp. Laws 1929, § 17220 (Stat. Ann. § 28.946), which provides:
“No person shall upon such inquiry be required to answer any questions the answers of which might
tend to incriminate Mm except upon motion in writing by tbe prosecuting attorney which shall be granted by such justice or judge, and any such questions and answers shall be reduced to writing and entered upon the docket or journal of such justice or judge, and no person required1 to answer such questions upon such motion shall thereafter be prosecuted for any offense concerning which such answers may have tended to incriminate Mm. ’ ’
As hereinbefore shown, defendant was granted immunity upon the oral motion of Mr. 0 ’Hara, who was appearing as
amicus curiae
to the grand jury. The motion was not “in writing by the prosecuting attorney” as required by the above statute
(In re Wyrick,
301 Mich. 273;
In re Hickerson,
301 Mich. 278). The record does not show whether or not the questions and answers before the grand jury were “reduced to writing and entered upon the docket or journal” of the judge. However, it does appear that they weré taken down by a court reporter and transcribed.
Defendant contends that the grant of immunity was illegal because not in compliance with the statute; that he was compelled to testify by the grand jury and, therefore, his testimony was not voluntary; and that such testimony could not be used against Mm in his subsequent trial for perjury. In support of Ms contention defendant cites
In re Wyrick, supra,
and
In re Hickerson, supra.
In each of those cases a justice of the peace of the Pontiac municipal court was conducting a judicial investigation, in pursuance of 3 Comp. Laws 1929, § 17217
et seq.
(Stat. Ann. §28.943
et seq.).
He appointed an attorney to assist in the examination of witnesses and in the conduct of such investigation. The respective defendants were subpoenaed and asked certain questions, which they refused to answer on
the ground that their answers might incriminate them. The attorney appointed filed written motions to grant them immunity, and immunity was granted by the justice. They again refused to answer and were found guilty of contempt and1 sentenced. On review, the circuit court upheld the validity of the immunity granted. Both defendants then appealed, contending in substance that they were not required to answer the questions propounded, because their immunity was not granted upon motion of the prosecuting attorney, as required by the statute. In each case we held that the defendant was not guilty of Contempt and should be released' from custody. In the
Wyrick Case
we said:
“The right to grant immunity is found in the statute hereinbefore cited (3 Comp. Laws. 1929, §17220). An examination of this statute clearly leads to the conclusion that the making of a motion to grant immunity must he left to the discretion of the State’s representative. The State has wisely provided that this power should lie in the discretion of the prosecuting attorney or the attorney general in certain cases. It follows that the trial court was in error in affirming the action of the justice of the peace in granting immunity upon the motion of one not a prosecuting attorney or attorney general or the duly authorized representative thereof.”
In the
Kicker son Case
we said:
“The language of the statute, in providing that the motion shall he made by the prosecuting attorney, is mandatory in tone.
*
*
“A power of such importance should be exercised only by those whose sworn duty it is, as public officers, in this case the prosecuting attorney or attorney general, to enforce the criminal laws.”
It should be noted that in the ahove-diseussed cases the witnesses, after being granted purported
immunity, refused to answer questions which might have incriminated them, while in the present case defendant, after being granted purported immunity, freely answered questions propounded to him. Under the above holdings, his refusal to answer would not have placed him in contempt. However, such decisions are not determinative of the question before us, as to whether or not defendant’s testimony before the grand jury in December, 1939, was admissible in proof of his perjury in the
Roxborough Case
in October, 1941.
The immunity statute expressly protects a witness against prosecution for any offense concerning which his answers may tend to incriminate him, but it does not protect him from an offense subsequently committed. Defendant’s answers before the grand jury did not relate to the offense of perjury, which he committed two years later and, therefore, his answers did not then tend to incriminate him as to such offense. As he apparently testified before the grand jury in reliance upon and without questioning the legality of the purported grant of immunity, it may reasonably be inferred that he testified the same and as truthfully as though immunity had been granted in conformity with the statute. Therefore, we conclude that his testimony, so given before the grand jury, was properly admissible as tending to prove that subsequently, in the trial of the
Roxborough Case,
he testified falsely. The authorities cited by defendant do not sustain his contention that such testimony was not admissible.
The question, whether or not the immunity granted defendant on the motion of an
amicus curiae
protected him from prosecution for any offense of which his answers may have tended to incriminate him, is not before us. Apparently he received the immunity which the statute intended,
as there is no showing that he was ever prosecuted as a result of incriminating answers.
Immediately after testifying in the
Roxborough Case,
defendant admitted to Mr. O’Hara, then acting as special prosecutor, and to other persons, that he had testified falsely. Mr. O’Hara, called as a prosecution witness, said in part:
“Q.
Now, what was said by Mr. Woodson (defendant) in connection with the testimony which he had given before Judge Pugsley?
“A.
Well, Woodson was asked * * * whether or not it was not a fact that he had testified falsely before Judge Pugsley, and he said that he had.”
O’Hara’s testimony as to defendant’s admission of perjury was corroborated by that of am assistant prosecutor, an assistant attorney general, and a police officer. A partner and former business associate of defendant in the gambling business testified as to facts which indicated that he testified truthfully before the grand jury and falsely in the
Roxborough Case.
Defendant did not take the-stand and offered no testimony in the present case. We are satisfied that there was material and ample evidence from which the jury, as judge of the facts, could' find him guilty beyond a, reasonable doubt of the crime charged.
Defendant further contends that the trial court erred in its charge to the jury. We have carefully examined such charge and conclude that, when considered in whole, it fully and fairly presented the questions of fact involved and the law properly applicable thereto. It should be noted that defendant presented no specific requests to charge and made no objection to the charge when given. The trial court did not err in denying defendant’s motions for a directed verdict and for a new trial. Other questions raised and errors assigned do not merit con
sideration. We are convinced that there was no miscarriage of justice (3 Comp. Laws 1929, § 17354 [Stat. Ann. § 28.1096]).
The conviction is affirmed.
North, C. J., and Starr, Butzel, Boyles, and Reid, JJ., concurred with Bushnell, J. •