Brown v. State

Decision Date13 January 1964
Docket NumberNo. 30,30
Citation233 Md. 288,196 A.2d 614
PartiesJames Dawson BROWN v. STATE of Maryland.
CourtMaryland Court of Appeals

Jerome F. Connell, Glen Burnie (Edwin A. Lechowicz, Glen Burnie, on the brief), for appellant.

Fred Oken, Asst. Atty. Gen. (Thomas B. Finan, Atty. Gen., Baltimore, Marvin H. Anderson and John A. Blondell, State's Atty. and Deputy State's Atty., respectively for Anne Arundel County, Annapolis, on the brief), for appellee.

Before BRUNE, C. J., and HAMMOND, PRESCOTT, HORNEY and SYBERT, JJ.

BRUNE, Chief Judge.

This is an appeal from a judgment of the Circuit Court for Anne Arundel County finding the appellant, James Dawson Brown, guilty of contempt by reason of his refusal to obey an order of that court to answer before the Grand Jury for Anne Arundel County certain questions which had been propounded to him before that body, and fining him $500.00 and sentencing him to jail until he should purge himself of contempt by answering the questions. He was released on bail pending this appeal.

The questions which the appellant refused to answer were propounded to him in the course of a grand jury investigation into the alleged bribery of a Trial Magistrate for Anne Arundel County 'for the purpose of squelching or dismissing' a traffic charge against the appellant. Most of the questions pertained to a direct charge of bribery, but one pertained to conspiracy to bribe this official. The appellant's fundamental basis for refusing to answer was and is the privilege against self-incrimination under Article 22 of the Maryland Declaration of Rights. 1 The State contends that the testimony of the appellant was compellable and that he was entitled to immunity in respect thereof under Section 23 of Article 27 of the Code (1957), enacted pursuant to Section 50 of Article 3 of the Maryland Constitution. The appellant contends: first, that the statutory immunity afforded is not broad enough to 'abridge' the privilege against self-incrimination contained in Article 22 of the Declaration of Rights; and second, that the statutory immunity is not applicable to a proceeding before the grand jury. The State accepts the issues as tendered by the appellant, except that it substitutes 'displace' for 'abridge' in the first of them.

Article 22 of the Maryland Declaration of Rights reads as follows:

'That no man ought to be compelled to give evidence against himself in a criminal case.'

It is very similar in language to the corresponding clause of the Fifth Amendment to the Constitution of the United States providing that

'No person * * * shall be compelled in any criminal case to be a witness against himself.'

The appellant relies on cases decided under the Fifth Amemdment and urges that its interpretation should control the interpretation of Article 22 of the Declaration of Rights, but he does not assert that the Fifth Amendment is itself applicable here.

Section 50 of Article 3 of the Constitution of Maryland of 1867 provides in part:

'It shall be the duty of the General Assembly * * * to provide by Law for the punishment * * * of any person, who shall bribe, or attempt to bribe, any Executive, or Judicial officer of the State of Maryland, or any member, or officer of the General Assembly of the State of Maryland * * *; and, also, to provide by Law for the punishment, * * * of any of said officers, * * * who shall demand, or receive any bribe, * * *; and, also, to provide by Law for compelling any person, so bribing, or attempting to bribe, or so demanding, or receiving a bribe, fee, reward, or testimonial, to testify against any person, or persons, who may have committed any of said offenses; provided, that any person, so compelled to testify, shall be exempted from trial or punishment for the offence, of which he may have been guilty.'

Section 23 of Article 27 of the Code (1957) enacted in compliance with the above requirements provides for the punishment of any person bribing or attempting to bribe public officers, including any judge, justice of the peace or other judicial officer of the State, and of any such officer demanding or accepting a bribe, fee, reward, or testimonial for the purpose of influencing his performance of his official duties or of neglecting or failing to perform the same. It then continues:

'[A]ny person so bribing or attempting to bribe or so demanding or receiving a bribe shall be a competent witness, and compellable to testify against any person or persons who may have committed any of the aforesaid offenses; provided, that any person so compelled to testify on behalf of the State in any such case shall be exempt from prosecution, trial and punishment for any such crime of which such person so testifying may have been guilty or a participant therein, and about which he was so compelled to testify.'

Both sides, of course, cite Section 23 of Article 27, supra, but neither refers to Section 39 of that Article, which deals with compelling testimony of participants in conspiracies to violate Section 23 (and certain other offenses). 2 Since one question here asked pertained in part to such a suggested conspiracy, we set forth below the pertinent part of this statute:

'No person shall refuse to testify concerning the crime of conspiring to commit any of the offenses set forth in § 23 of this article, * * *, and any person shall be a competent witness and compellable to testify against any person or persons who may have conspired to commit any of the aforesaid offenses, provided that any person so compelled to testify in behalf of the State in any such case, shall be exempt from prosecution, trial and punishment for any and all such crimes and offenses of which such person so testifying may have been guilty or a participant or a conspirator therein and about which he was so compelled to testify.'

The State contends with considerable force that Section 50 of Article 3 of the Constitution and Section 23 of Article 27 of the Code (1957) have so completely occupied the field as to immunity from prosecution for offenses as to which testimony in bribery cases is compelled that Article 22 of the Declaration of Rights has no applicability in such cases. It relies on Anderson v. Baker, 23 Md. 531, holding that the Registry Act of 1865, passed pursuant to certain provisions of the Constitution of 1864 imposing a test oath and requiring persons seeking registration as voters to answer under oath questions pertaining to their loyalty to the United States, did not fall within what was then Article 23 (now Article 22) of the Bill of Rights, and further, that if the voting privilege were within the contemplation of Article 23, it was withdrawn or excepted from its operation by the express provisions of the Constitution relating to voting. (23 Md. at 591.) See also Mayor and City Council of Baltimore v. State, 15 Md. 376, at 459, holding that a specific constitutional provision prevails as a limitation upon a general principle set forth in the Declaration of Rights.

Other states having constitutional immunity provisions similar to ours have held that they limit the constitutional privilege against self-incrimination. See State v. Rodrigues, 219 La. 217, 52 So.2d 756; State v. Dominguez, 228 La. 284, 82 So.2d 12; Commonwealth v. Bell, 145 Pa. 374, 389, 22 A. 641; Commonwealth v. Cameron, 229 Pa. 592, 79 A. 169; Commonwealth v. Haines, 17s Pa.Super. 362, 90 A.2d 842; Maguire, Evidence of Guilt, 70 n. 13. It may be noted, however, that the Louisiana constitutional immunity provision involved in the Rodrigues and Dominguez cases is in terms self-executing and does more than establish a duty in the legislature to implement it. In addition, the self-incrimination provision of the Louisiana constitution (Const. art. 1, § 11, LSA), unlike Section 22 of our Declaration of Rights, contains the phrase 'except as otherwise provided in this Constitution.' The self-incrimination provision of the Pennsylvania constitution is likewise self-executing, and it does not contain a clause relating to exceptions.

Such a view also finds some support in the debates on the constitutional provision here involved. See Perlman, Debates of the Maryland Constitutional Convention of 1867, p. 286. One objection made to Section 50 of Article 3 was 'that it violated the principle of the Declaration of Rights, which declares that no man shall be compelled to give evidence against himself.' A proposed amendment to strike the clause compelling persons offering bribes to testify against those receiving them was, however, defeated.

We think that Section 23 of Article 27 of the Code (1957) undertakes to give in full the immunity contemplated by Section 50 of Article 3 of the Constitution, and in terms is somewhat broader, but is not beyond the constitutional authorization. We might rest our opinion on the ground that this statutory provision founded upon the constitutional mandate (as in Anderson v. Baker, supra) limits the scope of Article 22 of the Declaration of Rights, if there were any conflict between them.

We think, however, that there is no real conflict between Article 22 of the Declaration of Rights and the statutory immunity here granted. The general rule (apart from a constitutional provision, whether self-executing or implemented by statute, which in terms or by implication limits the privilege against self-incrimination) is that in order to be valid, the immunity granted must be as broad as the privilege against self-incrimination which it supplants or displaces.

Our Article 22 is in pari materia with the provisions of the Fifth Amendment to the Federal Constitution against self-incrimination, and it should, we think, receive a like construction. Adams v. State, 202 Md. 455, 460, 97 A.2d 281, reversed on another ground, 347 U.S. 179, 74 S.Ct. 442, 98 L.Ed. 608; Bass v. State, 182 Md. 496, 500, 35 A.2d 155; Blum v. State, 94 Md. 375, 382, 51 A. 26, 56 L.R.A. 322. 3

Historically, at least, Counselman v....

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