OPINION OF THE COURT BY
KEMP, J.
(Coke, C. J., dissenting.)
On the 27th day of August, 1918, A. M. Cabrinha, a member of the board of supervisors of the County of Hawaii, was indicted for alleged violations of section 168, R. L. 1915.
The defendant has filed a motion to quash said indictment alleging “that the said A. M. Cabrinha was required by a subpoena to appear on the 26th day of August, 1918, before the said grand jury as a witness while the said indictment and the charges of violation of section 168 of the Revised Laws of Hawaii therein contained were pending-before the said grand jury, and while they were inquiring into said charges and considering- the question whether they would find the said indictment to be a true bill; and that he, the said A. M. Cabrinha, did appear in obedience [622]*622to said subpoena and was sworn and examined and required to testify and did testify to matters and things relating to, and material to, the charges made in the indictment against him, and in each and all of the counts thereof; this without having been informed or having knowledge that the grand jury had under consideration any matter involving a criminal charge against him, the said A. M. Cabrinha.”
The facts were tried upon the affidavits of defendant and the foreman of the grand jury from which the circuit judge has found and certified the facts substantially as follows: That on August 23 the said A. M. Cabrinha was subpoenaed to appear before the grand jury on August 26 as a witness; that in response to said subpoena he did so appear on said August 26, whereupon he was sworn as a witness, after which and before he was interrogated he was advised by the deputy attorney general in the presence of the grand jury that the grand jury desired to ask him certain questions concerning matters then under investigation by said grand jury, and further that if any question should be propounded to him, an answer to which, in his opinion, might tend to incriminate him in any way he might refuse to answer such question; that the deputy attorney general thereupon propounded to him, in the presence of the grand jury, certain questions and in response thereto he made statements as to the business of Cabrinha & Company named in said indictment, and as to the ownership of said business and the names of the partners and persons pecuniarily interested in the business transacted by said firm, said matters and things relating to and being material to the charges made in said indictment; that testimony as to these matters had previously been given by other witnesses; that at the time of his examination as a witness he did not know and was not informed that his own conduct was under investigation; [623]*623that he did not request an opportunity to consult an attorney but answered all questions without objection, except one, the nature of which is not disclosed, which he refused to answer on the ground that an answer thereto might tend to incriminate him.
The circuit judge believing that it is in the interest of justice that the questions of law presented by the facts upon said motion shall first be determined by this court has reserved the following questions:
(1) “Should an indictment be quashed when it appears that the defendant was compelled by subpoena to attend before the grand jury, and give material testimony, without knowing that his own conduct was under investigation?”
(2) “Upon the facts found by the trial court, as above set forth, should the motion to quash the indictment be granted?”
The first question is not sufficiently comprehensive to make an answer to it of value in this case and is therefore returned unanswered. However, an answer to the second question is all that is necessary to apprise the circuit judge of the law applicable to the facts before him.
The question is, are the above facts sufficient to vitiate the indictment? This question involves that portion of the Fifth Amendment to the Constitution of the United States which provides: “Nor shall any person * * * be compelled in any criminal case to be a witness against himself.”
Our first concern is to determine whether under the circumstances of this case the defendant was “compelled,” as that term is used in said amendment, to be a witness against himself, or was his testimony voluntarily given? If he was compelled to be a witness against himself his constitutional right was invaded and the indictment which resulted from his so being compelled is invalid and should [624]*624be abated, while if he voluntarily gave evidence against himself he has no just cause of complaint. Whether one has been compelled to he a witness against oneself must he determined in each casé from the facts of that case. It certainly would not be seriously contended that being subpoenaed and appearing before the grand jury was a violation of this constitutional right, nor his being sworn before that body, nor testifying upon any matter that did not tend to incriminate him even though he was “compelled” in all of these particulars. All of these things the law compels him, in common with other citizens, to do. Up to the point then where the interrogation of defendant as a witness on the matters of which he complains began nothing took place which could he said to have violated his constitutional right and if he, after being advised, as he was, of his right to refuse to make self-incriminating answers, gave his testimony voluntarily and without objection, no matter how incriminating it was, no constitu-. tional guarantee was invaded by the proceeding. Immunity from compulsion in the matter of becoming a witness against oneself is a personal privilege which may be waived as may any other personal privilege.
“It is well settled that a witness cannot claim his constitutional privilege until he is sworn. He must take the oath, so that his assertion of privilege shall he made under that sanction.” United States v. Kimball, 117 Fed. 156, 163.
From the fact that one cannot claim one’s constitutional privilege until after taking the oath it necessarily follows that the constitutional privilege cannot until that time be violated. It cannot be violated before it can he invoked. Compulsion, then, does not arise from the summoning, swearing and examination of the witness on matters which do not tend to incriminate him.
It will now he considered whether the additional facts, [625]*625that the witness did not know at the time of his examination that his own conduct was under investigation and made self-incriminating statements without objection after being fully advised of his rights in the matter, will render his statements involuntary and vitiate the indictment.
It is not contended that the defendant was not advised of his right to refuse to make self-incriminating statements or that he raised any objection to answering any of the questions of which he now complains. The complaint is that he did not know and was not advised that his conduct was the subject of investigation and that he, therefore, cannot be held to have given his testimony voluntarily.
In the case of United States v. Edgerton, 80 Fed.
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OPINION OF THE COURT BY
KEMP, J.
(Coke, C. J., dissenting.)
On the 27th day of August, 1918, A. M. Cabrinha, a member of the board of supervisors of the County of Hawaii, was indicted for alleged violations of section 168, R. L. 1915.
The defendant has filed a motion to quash said indictment alleging “that the said A. M. Cabrinha was required by a subpoena to appear on the 26th day of August, 1918, before the said grand jury as a witness while the said indictment and the charges of violation of section 168 of the Revised Laws of Hawaii therein contained were pending-before the said grand jury, and while they were inquiring into said charges and considering- the question whether they would find the said indictment to be a true bill; and that he, the said A. M. Cabrinha, did appear in obedience [622]*622to said subpoena and was sworn and examined and required to testify and did testify to matters and things relating to, and material to, the charges made in the indictment against him, and in each and all of the counts thereof; this without having been informed or having knowledge that the grand jury had under consideration any matter involving a criminal charge against him, the said A. M. Cabrinha.”
The facts were tried upon the affidavits of defendant and the foreman of the grand jury from which the circuit judge has found and certified the facts substantially as follows: That on August 23 the said A. M. Cabrinha was subpoenaed to appear before the grand jury on August 26 as a witness; that in response to said subpoena he did so appear on said August 26, whereupon he was sworn as a witness, after which and before he was interrogated he was advised by the deputy attorney general in the presence of the grand jury that the grand jury desired to ask him certain questions concerning matters then under investigation by said grand jury, and further that if any question should be propounded to him, an answer to which, in his opinion, might tend to incriminate him in any way he might refuse to answer such question; that the deputy attorney general thereupon propounded to him, in the presence of the grand jury, certain questions and in response thereto he made statements as to the business of Cabrinha & Company named in said indictment, and as to the ownership of said business and the names of the partners and persons pecuniarily interested in the business transacted by said firm, said matters and things relating to and being material to the charges made in said indictment; that testimony as to these matters had previously been given by other witnesses; that at the time of his examination as a witness he did not know and was not informed that his own conduct was under investigation; [623]*623that he did not request an opportunity to consult an attorney but answered all questions without objection, except one, the nature of which is not disclosed, which he refused to answer on the ground that an answer thereto might tend to incriminate him.
The circuit judge believing that it is in the interest of justice that the questions of law presented by the facts upon said motion shall first be determined by this court has reserved the following questions:
(1) “Should an indictment be quashed when it appears that the defendant was compelled by subpoena to attend before the grand jury, and give material testimony, without knowing that his own conduct was under investigation?”
(2) “Upon the facts found by the trial court, as above set forth, should the motion to quash the indictment be granted?”
The first question is not sufficiently comprehensive to make an answer to it of value in this case and is therefore returned unanswered. However, an answer to the second question is all that is necessary to apprise the circuit judge of the law applicable to the facts before him.
The question is, are the above facts sufficient to vitiate the indictment? This question involves that portion of the Fifth Amendment to the Constitution of the United States which provides: “Nor shall any person * * * be compelled in any criminal case to be a witness against himself.”
Our first concern is to determine whether under the circumstances of this case the defendant was “compelled,” as that term is used in said amendment, to be a witness against himself, or was his testimony voluntarily given? If he was compelled to be a witness against himself his constitutional right was invaded and the indictment which resulted from his so being compelled is invalid and should [624]*624be abated, while if he voluntarily gave evidence against himself he has no just cause of complaint. Whether one has been compelled to he a witness against oneself must he determined in each casé from the facts of that case. It certainly would not be seriously contended that being subpoenaed and appearing before the grand jury was a violation of this constitutional right, nor his being sworn before that body, nor testifying upon any matter that did not tend to incriminate him even though he was “compelled” in all of these particulars. All of these things the law compels him, in common with other citizens, to do. Up to the point then where the interrogation of defendant as a witness on the matters of which he complains began nothing took place which could he said to have violated his constitutional right and if he, after being advised, as he was, of his right to refuse to make self-incriminating answers, gave his testimony voluntarily and without objection, no matter how incriminating it was, no constitu-. tional guarantee was invaded by the proceeding. Immunity from compulsion in the matter of becoming a witness against oneself is a personal privilege which may be waived as may any other personal privilege.
“It is well settled that a witness cannot claim his constitutional privilege until he is sworn. He must take the oath, so that his assertion of privilege shall he made under that sanction.” United States v. Kimball, 117 Fed. 156, 163.
From the fact that one cannot claim one’s constitutional privilege until after taking the oath it necessarily follows that the constitutional privilege cannot until that time be violated. It cannot be violated before it can he invoked. Compulsion, then, does not arise from the summoning, swearing and examination of the witness on matters which do not tend to incriminate him.
It will now he considered whether the additional facts, [625]*625that the witness did not know at the time of his examination that his own conduct was under investigation and made self-incriminating statements without objection after being fully advised of his rights in the matter, will render his statements involuntary and vitiate the indictment.
It is not contended that the defendant was not advised of his right to refuse to make self-incriminating statements or that he raised any objection to answering any of the questions of which he now complains. The complaint is that he did not know and was not advised that his conduct was the subject of investigation and that he, therefore, cannot be held to have given his testimony voluntarily.
In the case of United States v. Edgerton, 80 Fed. 374, cited by defendant and confidently l’elied upon in support of his proposition that one cannot be said to have acted voluntarily who gave his testimony without knowing that his own conduct was under investigation it does not appear that the defendant was advised of his right to refuse to give self-incriminating evidence. This fact robs the opinion in that case of any particular application to the ease at bar where the defendant when called before the grand jury was fully advised of his right to refuse to give self-incriminating evidence. What effect then, if any, should be given to the fact that the defendant was so advised? From 22 Cyc. 423, we quote the following:
“An indictment will be quashed where defendant was called to testify before the grand jury as to the matter from which it resulted, without knowing or being informed that his own conduct Avas under investigation, and although. such is not a statutory ground for quashing the indictment. But where defendant has been adAised of his right to decline to ansAver upon the ground of self-incrimination it has been held that his voluntary testimony is not ground for quashing.”
In support of the last sentence of this text the case of [626]*626State v. Donelon, 45 La. 744, 12 So. 922, is cited in the foot note and defendant has undertaken to avoid the force of the text and said decision by pointing out that the defendant in that case knew when he appeared before the grand jury that his own conduct Avas under investigation and that the case does not therefore support the text. It is true that the defendant in that case must have known at the time he testified before the grand jury in a general Avay, although he was not told, that his own conduct Avas under investigation, since it appears that at the time he was incarcerated in jail under an accusation pending against him and several others in the recorder’s court for the same offense, Avithout benefit or bail. But regardless of whether the text is supported by the authority cited Ave regard the rule there announced as sound.
We do not think the fact that the defendant Avas not told before giAdng his testimony that his oavu conduct was under investigation rendered his testimony involuntary since he was advised of his right to refuse to answer any question the ansAver to which in his opinion might tend in any Avav to incriminate him. He must be assumed to he a man of ordinary intelligence and' to be able to differentiate between statements AAdiich would and those Avhich would not tend to incriminate him. Had he known that his own conduct was under investigation how could that knowledge have aided him in determining whether or not his ansAver to any given question might have a tendency to incriminate him? When he was advised of his right to refuse to answer he was placed on his guard and if he failed to avail himself of his privilege he must he deemed to have waived it and to have testified voluntarily, hence his constitutional privilege was not invaded.
“In all cases where a personal privilege exists for a Avitness to testify or not., if such witness does testify without objection he Avill be deemed to have done so voluntarily. Hoav could there be compulsion or legal restraint, Avhen [627]*627there was no law which could compel Lauder to testify to criminating matters against himself, or punish him for refusing to testify?” People v. Lauder, 82 Mich. 109, 119, 120.
J. Lightfoot, Deputy Attorney General, for the Territory.
J. W. Russell and W. H. Lniith for defendant.
The first question is returned not answered and the second question is answered in the negative.