Ex Parte Eichel

• Decision Date: 23 November 1909
• Citation: 223 Mo. 258,122 S.W. 743
• Parties: Ex parte EICHEL.
• Court: Missouri Supreme Court

122 S.W. 743

223 Mo. 258

Ex parte EICHEL.

Supreme Court of Missouri, Division No. 2.

November 23, 1909.

WITNESSES (§ 297) — EXAMINATION OF WITNESSES — PRIVILEGE.

Under Const. U. S. Amend. 5, and Const. Mo. art. 2, § 23 (Ann. St. 1906, p. 158), providing that no person shall be compelled in a criminal case to testify against himself, a witness before a grand jury is not compelled to answer a question as to whether he ever made a bet with any person other than a person named, on the result of a horse race, where the witness states he cannot answer such question without incriminating himself.

David Eichel brings habeas corpus proceedings against Louis Nolte. Petition granted.

T. J. Rowe, T. J. Rowe, Jr., and Henry Rowe, for petitioner. S. G. Jones, Circuit Atty., and F. G. Ferris, Asst. Circuit Atty., for respondent.

GANTT, P. J.

The petitioner was committed to the jail of the city of St. Louis for contempt of court in refusing to answer a certain question before the grand jury of said city. He was brought before the judge of division No. 10 of the circuit court, and having been ordered to answer the question, and having again refused to do so, was committed to the custody of the jailer until he should answer said question. Thereupon he sued out a writ of habeas corpus in this court.

The question which he refused to answer was the following: "Did you ever make any bet with any person other than one Steve Pensa upon the result of a horse race to be run anywhere in this state, or without the state, at his place of business on Washington avenue?" The petitioner answered that he could not answer this question without incriminating himself, and the question now presented is whether he was guilty of pertinaciously refusing to answer a lawful question. While counsel for the state has endeavored to draw a distinction between the facts of this case and that of Ex parte Gauss, Petitioner (which has been heard and the opinion handed down at this sitting of the court) 122 S. W. 741, we have been unable to make any distinction in the principle which should govern in such a case. We think the witness was entitled to refuse to answer the question after he had disclosed under oath to the court that he could not do so without accusing himself of a crime.

For the reason given in Ex parte Gauss, supra, we think the commitment was wrongful, and, accordingly, the prisoner is discharged.

BURGESS and FOX, JJ., concur.