Commonwealth v. Haines

• Decision Date: 17 July 1952
• Citation: 171 Pa.Super. 362,90 A.2d 842
• Parties: COMMONWEALTH v. HAINES.
• Court: Pennsylvania Superior Court

90 A.2d 842

171 Pa.Super. 362

COMMONWEALTH v. HAINES.

Superior Court of Pennsylvania

July 17, 1952

Argued March 24, 1952.

Appeals, Nos. 31 and 89, October T., 1952, from judgments of Court of Quarter Sessions of Philadelphia County, Sept. T 1951 and December T., 1951, in case of Commonwealth of Pennsylvania v. Harry W. Haines.

Contempt proceedings. Before Lewis, J.

Defendant adjudged in contempt and judgments and sentences entered. Defendant appealed.

Milton S. Leidner, for appellant.

Thomas M. Reed, Assistant District Attorney, with him Michael von Moschzisker, First Assistant District Attorney, Edward K Nichols, Jr., Assistant District Attorney, and Richardson Dilworth, District Attorney, for appellee.

Rhodes P. J., Hirt, Reno, Dithrich, Ross, Arnold and Gunther, JJ.

OPINION

RHODES, J.

These two appeals, Nos. 31 and 89, October Term, 1952, are from adjudications and sentences for contempt. The appeals were consolidated for argument, and disposition will be made of both in this opinion.

Appellant appeared before a special investigating grand jury (March, 1951) which had been charged by Judge Edwin O. Lewis of the Court of Quarter Sessions of Philadelphia County under prescribed limitations. A petition of the District Attorney of Philadelphia County had been presented to the Judges of the Court of Quarter Sessions of the County of Philadelphia setting forth matters which, it was averred, gravely affected the public welfare, so that a thorough and complete investigation by a grand jury was required. The purpose of the grand jury investigation, as the court charged, was to investigate conditions within the county relating to an alliance said to exist between police and other public officials and criminals engaged in the operation of lotteries and other forms of gambling, such relationship being maintained through bribery and corrupt solicitation. Judge Lewis charged this grand jury on March 22, 1951, it being the same as that before which another witness refused to testify. We shall not repeat the questions decided in that appeal (Com. v. Butler, 171 Pa.Super. 350, 90 A.2d 838).

On several occasions appellant, when before the grand jury, had refused to answer questions asked by the assistant district attorney in charge of the grand jury investigation; he refused upon the advice of his counsel and claimed privilege against self-incrimination under Article I, § 9, of the Constitution of Pennsylvania. The question which appellant refused to answer on September 5, 1951 (appeal No. 31), while first appearing before the grand jury was the following: "Did you ever pay to anybody, to be given to any person employed by the City or County of Philadelphia, any money to influence him in the performance of his duty?" Appellant was then brought before Judge Lewis, in open court, who directed him to answer the question that had been propounded to him, and any that might be propounded to him touching any alleged offenses of bribery or corrupt solicitation. He was informed that he could not refuse to testify on the ground that the answers might incriminate him or subject him to public infamy, and that such testimony as he was thus required to give before the grand jury could not thereafter be used against him in any judicial proceeding, reference having been made by the court to Article III, § 32, of the Constitution of Pennsylvania. Appellant, on the advice of counsel, persisted in his refusal to answer or testify, and was thereupon adjudged in contempt, and sentenced, on September 12, 1951, to three months in the county prison, "unless he shall sooner purge himself of the contempt."

Article III, § 32, of the Constitution of Pennsylvania provides as follows: "Any person may be compelled to testify in any lawful investigation or judicial proceeding against any person who may be charged with having committed the offence of bribery or corrupt solicitation, or practices of solicitation, and shall not be permitted to withhold his testimony upon the ground that it may criminate himself or subject him to public infamy; but such testimony shall not afterwards be used against him in any judicial proceeding, except for perjury in giving such testimony, and any person convicted of either of the offences aforesaid shall, as part of the punishment therefor, be disqualified from holding any office or position of honor, trust or profit in this Commonwealth."

It is argued on behalf of appellant that the question propounded was too broad, and that the payment concerning which inquiry is made must be to a named person in order that appellant shall be required to answer under Article III, § 32. Appellant seeks an interpretation of Article III, § 32, under which a witness could be compelled to testify only in a "judicial proceeding against any person [a named person] who may be charged with . . . bribery or corrupt solicitation, . . ." Under appellant's theory, testimony could not be compelled under a grand jury "investigation" into bribery and corrupt solicitation, since it is not a "judicial proceeding against [a named person]." Section 32 of Article III cannot be given such a narrow construction. Our Supreme Court has held that section 32 of Article III must be liberally construed to carry out its underlying purpose, and that its words should be taken in their popular, natural, and ordinary meaning rather than in any technical or restricted sense. Commonwealth v. Bell, 145 Pa. 374, 390, 22 A. 641. We all agree that the language used in Article III, § 32, is subject to the plain and obvious interpretation which would compel testimony from "Any person . . . in any lawful investigation . . . of bribery or corrupt solicitation," as well as in a "judicial proceeding against any person . . . charged . . ." with these offenses. The question as propounded to appellant was neither too broad nor too general; and appellant could not legally refuse to answer on that ground. In view of this conclusion, it follows that the general question came within the purview of compellable testimony under a proper interpretation of Article III, § 32. A grand jury investigation is by nature concerned primarily with things and general conditions rather than with specific individuals. Com. v. Klein, 40 Pa.Super. 352, 356. To accomplish a full investigation of general and public evils, affecting in their influence and operation communities rather than individuals, a witness before such grand jury may not remain silent but must testify where a constitutional provision such as section 32 of Article III prevents subsequent use of the testimony against him in any judicial proceeding (In re Contempt of Myers and Brei, 83 Pa.Super. 383, 391; Com. v. Bell, supra, 145 Pa. 374, 391, 22 A. 641); and this being a matter subject to constitutional regulation the provision cannot be rejected upon the ground that it is in conflict with Article I, § 9.

We are not impressed with appellant's contention that he was deprived of due process of law under the Fourteenth Amendment to the Federal Constitution on the ground that Article III, § 32, of the Constitution of Pennsylvania does not insure due process of law as provided by the Fourteenth Amendment. The prohibition against self-incrimination contained in Article V of Amendments to the Federal Constitution is not obligatory upon the governments of the several states or their judicial establishment, and regulates the procedure of the Federal courts only. Ensign v. Pennsylvania, 227 U.S. 592, 33 S.Ct. 321, 57 L.Ed. 658, 661. We have said that a statute may not limit the privilege against self-incrimination as given in Article I, § 9, of the Constitution of Pennsylvania which is a similar prohibition to that in the Federal Constitution (Com. v. Frank, 159 Pa.Super. 271, 48 A.2d 10); but Article III, § 32, of the former restricts only the use of the testimony he was compelled to give, and does not confer immunity from prosecution for an offense in relation to which he was compelled to testify. "No one pretends that sec. 32, art. III, is not valid and enforceable, and could not do so without ignoring or denying effect to the decisions in Com. v. Gibbons, 9 Pa. Superior Ct. 527, affirmed on appeal in Kelly's Contested Election, 200 Pa. 430 , and without asserting also that exemption from compulsory self incrimination is a natural right, or a right secured by the federal constitution, which a state constitution can neither take away nor abridge -- a position which is not sustained by principle or authority": Com. v. Cameron, 229 Pa. 592, 593, 79 A. 169.

We have no doubt whatsoever that appellant was obliged to testify in this grand jury investigation which concerned bribery and corrupt solicitation. Com. v. Bell, supra, 145 Pa 374, 22 A. 641. And the fact that at the time he was called to testify before the grand jury he was a defendant and under indictment on...