State v. Murphy

107 N.W. 470, 128 Wis. 201, 1906 Wisc. LEXIS 250

• Court: Wisconsin Supreme Court
• Decided: April 17, 1906
• Status: Published

Opinions

Dodge, J.

In an effort to reach certain crimes which involved complicity of two or more persons and, ordinarily, could not be proved without the testimony of some of those concerned, Congress had enacted that no such testimony “shall be given in evidence, or in any manner used against such party or witness,” etc. Notwithstanding this statute, Oounselman, a grain dealer, refused to answer to¹ a grand jury whether he had obtained any rebates or cut rates from railroads, also whether he knew of any such favor being allowed any shipper in Chicago. The supreme court of the United States sustained him in such refusal by unanimous decision, where was considered exhaustively, in the light of all prior adjudications, the true construction of the constitutional right of silence as to criminatory matters. It was held that this right is a highly favored one, the preservation of which is more important and sacred than any considerations of convenience of government in discovering or punishing crime; that it reaches not only disclosure of actual crime, but of any fact however apparently innocent in and of itself which might under any circumstances aid in supplying a link in a chain of circumstantial evidence of a crime, or even might constitute,a source or means from which or by which evidence of its commission or of his connection with it may be obtained or mad© effectual for his conviction, without using his answers as direct admissions against him. Counselman v. Hitchcock, 142 U. S. 547, 585, 12 Sup. Ct. 195, 206; a view sustained by Marshall, C. J., 1 Burr’s Trial, 244; Boyd v. U. S. 116 U. S. 616, 6 Sup. Ct. 524; Bram v. U. S. 168 U. S. 532, 18 Sup. Ct. 183; People ex rel. Taylor v. Forbes, 143 N. Y. 219, 38 N. E. 303; Emery’s Case, 107 Mass. 172; Thornton v. State, 117 Wis. 338, 341, 93 N. W. 1107. Upon this construction of the constitution it was held that the statute then under consideration merely prohibiting the use in evidence in any proceeding against him of the testimony a witness might have given in other described proceedings, was not equivalent to the protection resulting to him from the constitutional privilege to remain silent, and that nothing short of complete immunity from prosecution or punishment could be so equivalent; that unless the statute made it impossible that there should be a “criminal case” against him which might be aided in the way described by some answer to the questions propounded he still might refuse to answer.

This case has since been 'followéd in nearly all the states where either the construction of a similar constitutional guaranty or an immunity statute has been considered, although in some of them a different view had previously been declared; notably in New York, where the court of appeals has expressly overruled People ex rel. Hackley v. Kelly, 24 N. Y. 74, which was considered the leading adverse case by the supreme court of the United States. People ex rel. Lewisohn v. O’Brien, 176 N. Y. 253, 68 N. E. 353. In the Gounselman Gase the court not only decided the inability of Congress to infringe upon this right of silence and the broad and liberal construction which must be accorded the constitutional guaranty, but by original statement and apt quotation dwelt on the sacredness of that right and the tyrannical and despotic character of attempts by government to outrage the privacy of the individual, in emphasis of the impropriety and inconsistency of any, even the first and most insidious, step in that direction by a government created by the-people for the primary purpose of assuring and protecting individual liberty.

To this admonition from the court Congress responded by enacting, in modification of the former attempted legislation, the statute of 1893, which, as far as material, provided:

“No person shall be excused from attending and testifying- or from producing boohs, papers, tariffs, contracts, agreements and documents [in certain proceedings] on.the ground or for the reason that the testimony or evidence, documentary or otherwise, required of him, may tend to criminate him or subject him to a penalty or forfeiture. But no person shall be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter or thing, concerning which he may testify, or produce evidence, documentary or otherwise, before said commission. . . . Provided, that no-person so testifying shall be exempt from prosecution and punishment for perjury committed in so testifying.” Act Feb. 11, 1893, ch. 83, 27 Stats, at Large, 443 [3 U. S. Comp. Stats. 1901, p. 3173].

It will be noticed at once that this statute is replete, almost to tautology, with broadening repetitions and synonyms, which-strongly suggest an effort to assure as broad a field of immunity as words could well express, and the query is at once-suggested whether such evident industry of expression is not significant of an intent not alone to satisfy the exact restrictions imposed by the constitution, but to defer broadly to the governmental duty of protecting amply and generously the individual right of privacy, the sacredness of which had been so impressively stated in the Counselman Case. Especially are such expressions significant when we remember that much-more limited ones have been held to satisfy the prohibition contained in the constitution. Thus, in Néw Hampshire, it Ras been beld sufficient to that end to declare immunity from any crime which a witness’s testimony “disclosed” (State v. Nowell, 58 N. H. 314); and in California and Tennessee to immune a witness from an “offense as to which he testifies” {Ex parte Cohen, 104 Cal. 524, 38 Pac. 364; People v. Sternberg, 111 Cal. 3, 43 Pac. 198; Hirsch v. State, 8 Baxt. 89). Can it be doubted that Congress meant something broader than “offense” or “crime” by the expression “any transaction, matter or thing,” or that they meant something more than “disclosed” by “concerning which he testifies” ? In Brown v. Walker, 70 Fed. 46, 49, the act of 1893 was first held valid, and the court there declared that “In practical effect the legislative act throws a greater safeguard around the petitioner than the constitutional provision.” This decision was affirmed by the supreme court in Brown v. Walker, 161 U. S. 591, 16 Sup. Ct. 644, where it was held that the constitution did not pretend to excuse one from disclosing facts tending merely to disgrace him. The only other review of this statute in that court is Hale v. Henkel, 201 U. S. 43, 26 Sup. Ct. 370, holding that the constitution does not privilege a witness to refuse to answer a question of which the answer cannot tend to criminate him personally, although it may tend to criminate a corporation of which he is an officer. In the Packers’ Case (U. S. v. Armour & Co. U. S. Dist. Ct. N. D. Ill., March 21, 1906), 142 Fed. 808, 822, the court expressed its views upon the relative scope of the constitutional privilege and the statutory immunity thus:

“Bow, in my judgment, the immunity law is broader than the'privilege given by the fifth amendment, which the act was intended to substitute. The privilege of the amendment permits a refusal to answer. The act wipes out the offense about which the witness might have refused to answer. The privilege permits a refusal only as to incriminating evidence. The act gives immunity for evidence of or concerning the matter covered by the indictment [testimony] and the evidence need not be self-incriminating. The privilege must be personally claimed by the witness at the time. The immunity flows to the witness by action of law and without any claim on his part.”

We do not adopt in full either the views of Judge Humphrey, or the expression of them, as to the construction of this statute in detail, but quote them merely as evincing his opinion that no predetermined purpose is to be presumed that the immunity granted shall be strictly confined to that guaranteed by the constitution if a broader intent is §hown by the words used when they come to be construed.

Another consideration which might well have had weight in framing such legislation - was the removal of all inconvenient disputes and uncertainties as to the scope of inquiry to which the witness might be subjected in the effort to learn facts upon which others might be charged, so that he might not obstruct the examination by objecting to disclosure of apparently remote and immaterial matters by raising the possibility that his answers might be criminatory as to some matter unknown to the tribunal so that, therefore, it might be unable to overrule his objection. In view of the great diffi.-culty of discovering and punishing any one for these crimes it was at least possible to have been thought best to make the immunity so broad and attractive as to enhance the probability that one would be tempted to disclose the guilt of his associates; it being deemed wise policy to establish' even a probability of punishment of some in place of the existing almost certain inability to vindicate such criminal statutes at all. Eor these reasons we do not find any necessary or irresistible presumption that there could have been no legislative intent to provide any immunity which would not have resulted from according accused merely the privilege of silence guaranteed him by the constitution, but must presume that the words of the statute mean what they say, construed, like all other statutes where there is any ambiguity, in the light of the surrounding circumstances and general purpose so far as known. Our statute (cb. 85, Laws of 1901) is obviously an adoption of tbe federal act, except as tbe field of suspension from constitutional protection is broadened somewhat.

It is upon this presumption in favor of a strictly limited intent in this legislation that counsel for tbe state bases a contention tbat unless a witness resists answering a question, at least to tbe extent of asserting tbat tbe answer may tend ■to criminate bim and tbat be claims bis constitutional privilege to refuse answer, no immunity from prosecution is earned by bim. To tbis position there áre two answers: first, tbat tbe statute in terms imposes no such limitation upon tbe immunity, for it assures it to any person who “may testify,” not who may be compelled to testify or who may testify after first refusing or protesting and asserting bis constitutional right. Doubtless no criminal can immune himself by volunteering evidence without lawful demand. But a more obvious answer is that tbe law, giving tbe prosecuting officers and tbe investigating tribunal tbe power and right to demand tbe answer; the subpoena commanding attendance; tbe administering the oath, and tbe putting the question, deprive tbe witness of any privilege to withhold tbe information, or to effectively protest, and notify bim tbat tbe tribunal absolutely demands tbe testimony. A declaration tbat be would like to assert tbat privilege if be bad it, when by tbe very proceeding be is warned tbat be has it not, would be so entirely futile as to be puerile. What sense in bis asking whether tbe information is insisted on when all tbe steps taken constitute most unambiguous insistence ? Why assert a privilege when be has none ? Tbat be has none is certain, if tbis statute be given effect according to its terms, for it precludes tbe possibility of any “criminal case” in which bis testimony can be “against” bim in tbe sense forbidden by tbe fifth amendment to tbe federal constitution and, in identical words, by sec. 8, art I, Const. Wis. Brown v. Walker, 161 U. S. 591, 16 Sup. Ct. 644; Hale v. Henkel, 201 U. S. 43, 26 Sup. Ct. 370. This view was taken in the only case in the United States courts yet decided, where the question has been considered. Packers' Case (U. S. Dist. Ct. N. D. Ill., decided March 21, 1906), 142 Fed. 808. Subpoena, oath, and question have in many cases been held to prevent any inference of voluntariness of testimony from one who does not know his right to refuse. Why not equally so if from one who has no such right ? People v. Mondon, 103 N. Y. 211, 8 N. E. 496; State v. Young, 119 Mo. 495, 24 S. W. 1038; State v. Clifford, 86 Iowa, 550, 53 N. W. 299; Bram v. U. S. 168 U. S. 532, 18 Sup. Ct. 183. Needlessness of protest in presence of a demand from one having authority and power to enforce it has often been declared. U. S. v. Lawson, 101 U. S. 164; U. S. v. Ellsworth, 101 U. S. 170; Swift Co. v. U. S. 111 U. S. 22, 4 Sup. Ct. 244; Mosby v. U. S. 133 U. S. 273, 10 Sup. Ct. 327. We are satisfied that the circumstances under which defendant was called on to give his testimony were such as to entitle him to invoke such immunity from prosecution and punishment as the statute confers, and need not discuss the question whether one can by his own initiative and volition, without demand by any authorized person or tribunal, seek shelter under this law.

Another position founded on the same premise is that, because the constitutional privilege is to refrain merely from giving evidence against himself, a witness is immune from prosecution only when he gives evidence which is adverse to him. The difficulty with this position is, again, that the statute makes no such limitation; it in terms confers immunity when he testifies at all concerning a transaction, matter, or thing for or on account of which prosecution may be attempted. Indeed, if limited as counsel contends, the immunity would not be as broad as the constitutional privilege, for the latter is to refuse to answer a question at all if any answer the witness might give to such question might tend to criminate him. That is by no means satisfied by immunity only when the answer given does tend to charge him with the particular crime to which he pleads it.

Another suggestion is made to the effect that, unless the witness tells the truth, he cannot he'said to testify concerning that of which he speaks. This would involve a highly technical and unusual meaning for the word “testify,” which ordinarily means the making of any statement under oath in a judicial proceeding. 8 Words & Phrases, 6932, 6933. The statute itself, however, refutes any such meaning, for it expressly reserves the right to prosecute for perjury “in giving such testimony,” thus recognizing that the word “testimony” is used in a sense broad enough to include statements which are false.

Whatever general rules of construction should apply to this statute, whenever immunity is claimed under it the question arises whether defendant did, in any reasonable sense, testify concerning the transaction, matter, or thing for or concerning which he is prosecuted. The strongest evidence is defendant’s own testimony that he was asked “if I received any money for my vote on special privileges, bay windows, sidetracks, electric light, street railway extensions — I, or any of the aldermen or city officials.” This he answered in the negative. The charge in the information is that he did, on June 17, 1899, ask, solicit, demand, and receive from one Davis '$80 in money for the purpose of influencing the action of the common council and of himself to grant, and vote in favor of granting, privilege to lay railroad track over and across a certain public street. Did he testify concerning that transaction, matter, or thing? The very statement of the situation ¿eems to suggest a negative answer. While the denial that a specified interview or transaction took place, or that in a known and defined interview an act was or was not done, may, and perhaps must, be deemed testifying with reference to that transaction, a mere negative answer to a broad and general question as to the existence of any transactions of a certain kind, in a proceeding for discovery, without bint or suggestion that the inquirer has in mind any particular occasion, is no more than a declaration by the witness that he cannot testify concerning any transaction in such category. If,, in fact, any such event occurred to tire knowledge and memory of the witness, his negative answer is a most effective method of refusing to testify concerning it; more effective than invoking his constitutional privilege of silence, for, in that case, the court might compel him to answer if convinced that in no contingency could any answer tend to criminate him. The situation is not in analogy with that presented under sec. 4069, Stats. 1898, prohibiting a party from testifying in respect to any transaction with a deceased person, for there the negation of any interview may suffice to lift the burden of' proof resting on the living party which his opponent is unable to meet in any way. Brader v. Brader, 110 Wis. 423, 428, 85 N. W. 681; Howell v. Van Siclen, 6 Hun, 115, affirmed 70 N. Y. 595; Haughey v. Wright, 12 Hun, 179; Maverick v. Marvel, 90 N. Y. 656; Van Sandt v. Cramer, 60 Iowa, 424,. 15 N. W. 259; Ridler v. Ridler, 93 Iowa, 347, 351, 61 N. W. 994. But even there parties have been permitted to deny generally facts alleged by others to have occurred at some such transaction without being deemed to testify in respect to. any transaction. In re Estate of Edwards, 58 Iowa, 431, 10 N. W. 793; Pettit v. Geesler, 58 How. Pr. 195; McMillan v. Stern, 28 N. Y. Supp. 596; Pinney v. Orth, 88 N. Y. 447; Lewis v. Merritt, 98 N. Y. 206; Funson v. Salisbury, 15 App. Div. 214, 44 N. Y. Supp. 205. Indeed, in some cases direct testimony that an interview either did take place or that it did not has been held not testifying concerning the-transaction. Hier v. Grant, 47 N. Y. 278; Richards v. Munro, 30 S. C. 284, 289, 9 S. E. 108; Griffin v. Earle, 34 S. C. 246, 253, 13 S. E. 473; Trimmier v. Thomson, 41 S. C. 125, 19 S. E. 291; Andrews v. Hunt, 7 Mackey, 311, 315. These are, however, against the clear weight of authority and reason, except as some of them may be harmonized on the ground that the mere fact of the interview may be immaterial and the admission of the testimony, therefore, nonprejudicial as explained in Maverick v. Marvel, 90 N. Y. 656.

When that answer “No” was given, the progress of investigation to discover from this witness' anything concerning the transaction now charged was checked at the very threshold, unless, indeed, the grand jury had some other information of it, so as to enable specific inquiry of the witness. We are persuaded that we should but travesty the statute should we hold that a declaration that he could give no evidence of any transactions within a general class constituted testimony concerning one. That such testimony, if wilfully false, may subject a witness to a charge of perjury, has no application to the subject. The statute does not grant general immunity merely because one gives testimony which may result in a charge of perjury, but only immunity from prosecution for or on account of some transaction, matter, or thing concerning which he testifies.

This view is even more obvious with reference to the question and answer whether money was paid to any other aider-man or city officer. There is nothing proved to indicate that the district attorney had any particular instance in mind or that defendant supposed he had. When, therefore, defendant answered the question “No,” he in effect refused to testify concerning any transaction, if he knew of any. The whole situation and attitude is in negation of the idea that he did testify concerning one, in any reasonable sense of the statute.

Eor the reasons stated we are satisfied that there was absolutely no evidence that defendant did, before the grand jury, testify or produce any evidence of or concerning any transaction, matter, or thing for which he is prosecuted in this case; hence that the evidence was not sufficient to immune him, and the first question certified must be answered in the negative.

Tbe second question certified must be answered in tbe negative also. From wbat we bave already said, our conclusion is that as matter of law there was no evidence to establish tbe plea of immunity from prosecution, in which case it is proper for tbe trial court upon tbe separate trial of such plea in bar to direct a verdict against it. Murphy v. State, 124 Wis. 635, 102 N. W. 1081.

Tbe third question is not in proper form for certification to this court under sec. 4121, Stats. 1898, which, as already decided, authorizes only the submission of questions which have actually arisen on the trial of the cause and not abstract ones which may arise in the future. State v. Hickok, 90 Wis. 161, 62 N. W. 934. The case having been tried, and verdict both upon the plea in bar and upon the general plea of not guilty having been rendered, there can be no material question except whether the procedure in fact taken with reference to the trial of the special plea was so erroneous that judgment should not follow the verdict. We think, however, that we may treat the question framed by the court below as in effect a report of his need to be advised upon that which is really before him, and, so considering it, we think that no error was committed in the present case: First, because the defendant requested a separation of the issues and a preliminary trial of that upon the plea in bar; and, secondly, because no prejudice could result to him in this case, since the information fully and adequately set out the transaction, matter, and thing for or on account of which he was attempted to be prosecuted. Doubtless there may be cases where such a plea of immunity in bar cannot be intelligently tried until the evidence for the state is presented fully disclosing the transaction and the facts upon which guilt is charged, and where, therefore, a preliminary trial of such issue might be impracticable and prejudicial to the accused.

By the Court. — We answer the first question: No. We answer .the second question: No. We answer the third question : No error was committed in that respect in this case.

1 Note by Mabshall, J. In order that this and the other independent opinions in this case may he understandingly read it seems best to say this: The paragraph in the main opinion commencing with “We do not adopt,” etc. {ante, p. 210), which immediately follows the quotation from the Packers’ Case, was added to such main •opinion after the independent opinions' were- filed, so as to remove ■from such main opinion any indication contained therein of indorsement by the court of the quoted doctrine.