Atkinson v. State

• Decision Date: 15 October 1920
• Docket Number: No. 23337.,23337.
• Citation: Atkinson v. State, 190 Ind. 1, 128 N.E. 433 (Ind. 1920)
• Parties: ATKINSON v. STATE.
• Court: Indiana Supreme Court

190 Ind. 1

128 N.E. 433

ATKINSON

v.STATE.

No. 23337.

Supreme Court of Indiana.

Oct. 15, 1920.

Appeal from Circuit Court, Delaware County; Wm. A. Thompson, Judge.

Arthur Atkinson was convicted of visiting a gambling house, and he appeals. Reversed, with instructions.

Gene Williams, of Muncie, and McCormack, Brennan & Zechiel, of Indianapolis, for appellant.

Ele Stansbury, of Indianapolis, and Dale F. Stansbury, of Covington, for the State.

MYERS, C. J.

In the Delaware circuit court, by indictment, appellant was charged with visiting a certain gaming house, in violation of section 2371, Burns 1914. On being arraigned he pleaded guilty, and the cause was then continued. Four months later, by a verified motion, he sought permission from the court to withdraw his plea of guilty for the purpose of filing a plea in abatement averring immunity. The trial court overruled this motion, and thereupon sentenced him to pay a fine and to imprisonment at the Indiana State Farm. The action of the court in overruling appellant's motion to withdraw his plea of guilty is here assigned as error.

The record discloses that at the time appellant pleaded guilty he was in court “in person and by counsel.” The motion, in substance, shows that at the time he pleaded guilty he did not know who the witnesses were upon whom the state would rely for a conviction, and did not know that the only evidence before the grand jury, and upon which the indictment was predicated, was the admissions of appellant while before the grand jury, in response to questions propounded to him by the prosecuting attorney. He takes the position that, having been required to answer questions calling for evidence tending to criminate him, he was thereby entitled to immunity and the protection of section 2113, Burns 1914.

A counter affidavit by the prosecuting attorney and the stenographer who was present at the examination of witnesses before the grand jury returning the indictment stated that on January 10, 1917, appellant appeared before the grand jury and was duly sworn as a witness, whereupon the prosecuting attorney said:

“Let the record show that I had a talk with Mr. Atkinson, and as a result of the conversation touching the kind of a place that was being operated over the Lyric Theater, that Mr. Atkinson expressed a willingness to come before the grand jury and tell all he knew, and that I invited him to come. He is not here under subpœna, but is here voluntarily. Is that correct, Mr. Atkinson?

“By Mr. Atkinson: That is correct. Yes, sir.”

That thereupon said Arthur Atkinson voluntarily answered divers questions concerning the place of business located over the Lyric Theater, on South Walnut street, in the City of Muncie, Delaware county, Ind., and that all statements made to said grand jury by said Atkinson were voluntarily made by him.

Section 2113, supra, provides that-

“Whenever any person is required to testify touching the commission of any misdemeanor, his evidence therein shall not be used in any prosecution against him, except in case of perjury committed by him therein; and he shall not be liable to trial by indictment or affidavit, or to punishment for such misdemeanor.”

The theory of the state is that appellant was not required to appear and testify concerning gaining within his knowledge, but, having voluntarily done so, he was not entitled to immunity, although his answers to the questions propounded by the prosecuting attorney leaded to criminate him. The statute,it will be noticed, uses the words “required to testify.” “Require,” as thus used, means to ask of right and by authority. American Dic. & Ency; Tennessee, etc., Co. v. Waller (C. C.) 37 Fed. 545, 547.

From the statement of the prosecuting attorney, the inference is conclusive that the conversation to which he referred took place without the presence of the grand jury, then in session. In that conversation he learned from appellant facts which he evidently regarded as important for the grand jury to know concerning the character of business being carried on over the Lyric Theater.

By eliminating the opinions and conclusions of the affiants to the counter affidavit, the fact remains that appellant was before the grand jury at the invitation of the prosecuting attorney. It is evident that the information, received by the prosecuting attorney from appellant during the mentioned conversation concerning gaming in a room over the theater, made it the duty of the prosecuting attorney to set in motion the machinery of the law, and procure the attendance of witnesses, appellant, if need be, before the grand jury, and compel them, or him, to testify against others for gaming or for keeping any gaming apparatus or place to be used for gaming, although they, or he, may have been concerned as a party; but as to any such witnesses so testifying they were immune from trial by indictment or affidavit, or to punishment for such offense. Sections 9405, 2112, Burns 1914.

[1] It does not appear that appellant sought the interview which led to his invitation to appear before the grand jury. True, in response to this invitation, he did voluntarily appear before the grand jury and was then sworn and questioned by the prosecuting attorney, and gave answers which resulted in an indictment charging him with unlawfully visiting a certain house where gaming and playing of games for wagers was then and there permitted. Appellant could not have successfully resisted a grand jury subpœna. The invitation was by an officer whose duty it was to have the subpœna issued, and, once before the...