Commonwealth v. Lewis
| Decision Date | 04 April 1934 |
| Docket Number | 419 |
| Citation | 22 Pa. D. & C. 102 |
| Parties | Commonwealth v. Lewis et al |
| Court | Pennsylvania Commonwealth Court |
June sessions, 1933.
John H. Dando, for Commonwealth
John H. Hibbard, for defendants.
Motion for new trial.
Defendant's counsel has stressed two reasons in support of the motion for a new trial.
(1) That the court erred in admitting in evidence the testimony of the defendant, Bert Lewis, taken in the proceedings to remove the Commissioners of Hanover Township, No. 287, June sessions, 1932; and (2) that the court erred in admitting in evidence the testimony relative to four payments made to the defendant, Lewis, for wages. These payments had been made on various dates beyond the period of the statute of limitations.
1. In support of the first reason, counsel urges that the admission in evidence of the testimony of Lewis given in the removal proceedings was in violation of article I, sec. 9, of the State Constitution, which provides that a person" cannot be compelled to give evidence against himself" .
The gist of defendants' contention is that Lewis' testimony was not voluntarily given for the reason that, at the time of testifying, he was under duress. In support of this contention, counsel has directed our attention to the case of United States v. Bell, 81 Fed. 830, decided by the Circuit Court for the Western District of Tennessee, in which the conclusion was reached that the testimony of a witness who had not been informed of his constitutional rights at the time of his examination by a special examiner could not be used against him in a later prosecution for false swearing.
Our attention has been called to no authority within this State holding that it is the duty of the judge to warn the witness of his constitutional privilege and that failure so to do renders the testimony of the witness inadmissible in a subsequent proceeding against him, on the theory that it was involuntarily given. The nearest approach to such authority appears to be the case of Ralph v. Brown, 3 W. & S. 395, decided 92 years ago, in which Chief Justice Gibson said, at page 400:" Though the Judge ought to advise the witness of his privilege, (Southard v. Rexford, 6 Cow . 254), he cannot compel him to exercise it."
The constitutional prohibition is against a person being" compelled to give evidence against himself." " Voluntarily" is used as an antithesis of something done under compulsion. The Constitution confers upon every citizen the privilege of remaining silent wherever it reasonably appears that his testimony or declarations might result in self-incrimination.
Professor Wigmore, in his work on Evidence, states the following:" It is plausible to argue that the witness should be warned and notified, when a criminating fact is inquired about, that he has by law an option to refuse an answer; and this view was often insisted upon, a century ago, by the leaders at the Bar: But there are opposing considerations. In the first place, such a warning would be an anomaly; it is not given for any other privilege; witnesses are in other respects supposed to know their rights; and why not here? In the next place, it is not called for by principle, since, until the witness refuses, it can hardly be said that he is compelled to answer; nor is it material that he believes himself compelled, for the Court's action, and not the witness' state of mind, must be the test of compulsion. Again, the question can at any rate only be one of judicial propriety of conduct, for no one supposes that an answer given under such an erroneous belief should be struck out for lack of the warning. Finally, in practical convenience, there is no demand for such a rule; witnesses are usually well enough advised beforehand by counsel as to their rights when such issues impend, and judges are too much concerned with other responsibilities to be burdened with the prevision of individual witnesses' knowledge; the risk of their being in ignorance should fall rather upon the party summoning than the party opposing.
" Nevertheless, it is plain that the old practice was to give such a warning, when it appeared to be needed. But, as general knowledge spread among the masses, and the preparation for testimony became more thorough, this practice...
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