Cullen v. Commonwealth

• Decision Date: 17 December 1873
• Citation: 65 Va. 624
• Parties: CULLEN v. THE COMMONWEALTH.
• Court: Virginia Supreme Court

65 Va. 624

CULLEN v. THE COMMONWEALTH.

Supreme Court of Appeals of Virginia.

December 17, 1873

1. By the 8th section of the bill of rights of Virginia a person is not only secured against giving evidence against himself on his own trial, but he cannot be required on the trial of another, to testify, if his evidence will tend to criminate himself.

2. Even if a person might be required to give evidence on the trial of another which might tend to criminate himself, if the statute afforded him a complete indemnity, by discharging him from all prosecution for the offence, (of which quæ re? ) the act of October 7, 1870, amending § 1, ch. 12 of the Code of 1860, does not afford that indemnity; and therefore, in requiring any person engaged in a duel to testify against another prosecuted for having fought, &amp c., such duel, is unconstitutional.

3. Under the principles of the common law and the statutes against duelling, it may well be apprehended that the surgeon of a party to a duel would be regarded in law as being concerned in, or as aiding and abetting the duel.

4. The fact that the witness has testified before the coroner, and stated the facts, does not deprive him of his privilege; and that having been done without being advised of his privilege it is not a waiver of it by him.

At the July term 1873, of the Hustings court of the city of Richmond, an indictment was sent to the grand jury against John S. Meredith, Wm. L. Royall, Wm. R. Trigg and Wm. B. Tabb, for the murder of John B. Mordecai; and Dr. J. G. Dorsay Cullen was sworn and sent with other witnesses to the grand jury to testify in relation to the case. Before the grand jury Dr. Cullen was asked to state what he knew of a duel between W. Page McCarty and John B. Mordecai, near Oakwood cemetery. To this enquiry Dr. Cullen declined to answer; and this refusal having been communicated to the court by the grand jury, he was brought in to court, and declared that he so declined because the answer to said question would tend to criminate him.

The attorney for the commonwealth then moved the court that Dr. Cullen be compelled to answer the question. Upon this motion evidence was introduced for the purpose of showing that Dr. Cullen's conduct in relation to the duel was such as that his evidence could not criminate him; and the testimony given in by him before the coroner's inquest, which had been reduced to writing and signed by him, was also introduced for the same purpose, and also to show that having voluntarily testified before the coroner's inquest, he had waived his right, if it existed, to decline to testify in the case.

After hearing the evidence the court ordered that Dr. Cullen should answer the said question propounded to him by the grand jury in relation to the said duel. And Cullen still declining to answer the question, the court ordered that he be committed to the jail of this city for the space of one day, and that he pay a fine of fifty dollars for his said contempt. To this judgment Dr. Cullen excepted, stating the evidence in his exception; and applied to a judge of this court for a supersedeas; which was allowed.

Crump and Ould for the appellant.

The Attorney-General, for the commonwealth.

OPINION

BOULDIN, J.

Doctor J. S. Dorsay Cullen was sent before the grand jury of the Hustings court of the city of Richmond to give evidence on behalf of the Commonwealth on an indictment charging John S. Meredith, William L. Royall, William R. Trigg and William B. Tabb with the murder of John B. Mordecai, as principals, in the second degree, and accessories before the fact, the actual killing being charged to have been accomplished by W. Page McCarty. When Dr. Cullen appeared before the grand jury the following question was propounded to him: " State all you know in regard to a duel alleged to have taken place on the 9th day of May last, near Oakwood, between W. Page McCarty and John B. Mordecai?" Dr. Cullen declined to make any disclosure on the subject to the grand jury, saying to them in substance as follows: " I must decline to answer the question because my answer thereto will criminate myself." The witness was then brought before the Hustings court, and still insisting on his right to decline to answer, that court, after hearing testimony, ordered the witness to answer the question. He again declined for the reason already stated; whereupon the Hustings court adjudged him guilty of a contempt, imposed on him a fine of fifty dollars, and ordered him to be imprisoned for one day.

To that judgment Dr. Cullen applied for and obtained a writ of error and supersedeas from one of the judges of this court, on which the case is now before us. The question is, was Dr. Cullen guilty of a contempt of the Hustings court in refusing, for the reason stated by him, to make the disclosure called for by the grand jury and ordered by the court?

It is insisted by his counsel that he was not, because he has a right guarantied by the Constitution of the State, of which neither legislature nor courts can deprive him, to refuse to answer any question, the answer to which would tend to criminate him; and such it is contended would be the effect of an answer to the interrogatory propounded. Is there such constitutional right?

The right to refuse to answer such questions before any judicial tribunal was the well-settled law of England long before the separation of the American colonies from the mother country; but the State of Virginia, ever foremost in proclaiming principles of personal liberty and security, and providing safeguards to individual rights, was unwilling, when she assumed the attitude of an independent and sovereign State, to leave this great principle and others of kindred character subject, as at common law, to the mutations of legislative will or to the hazard of judicial discretion. She therefore thought proper, as far back as June 12th, 1776, and prior to the declaration of independence, when forming her own State Constitution, to make a solemn declaration of the rights of the good people of Virginia, " which rights do pertain to them and their posterity as the basis and foundation of government." And we find that by the 8th section of that declaration it is provided as follows:

" That in all capital or criminal prosecutions, a man hath a right to demand the cause and nature of his accusation, to be confronted with the accusers and witnesses, to call for evidence in his favor, and to a speedy trial by an impartial jury of his vicinage, without whose unanimous consent he cannot be found guilty; NOR CAN HE BE COMPELLED TO GIVE EVIDENCE AGAINST HIMSELF; that no man be deprived of his liberty, except by the law of the land or the judgment of his peers."

This section was framed nearly one hundred years ago by " men of the days gone by." It was framed for the protection of the citizen, and announced great principles of individual right, to be secured to the people of Virginia and their posterity forever; and it stands to this day, untouched in word, syllable or letter, a part of our State Constitution and a bulwark and safeguard to the citizen, having for near a century withstood the shock of revolution and the rage of innovation. The earnest and eminently wise and practical men who framed that declaration, certainly meant something when they solemnly declared that a man shall not be compelled to give evidence against himself. They were not issuing a mere brutum fulmen. On the contrary we think that it was their purpose to proclaim and render inviolable a great practical individual right--to declare as part of the organic law, that no man should anywhere, before any tribunal, in any proceeding, be compelled to give evidence tending to criminate himself, either in that or any other proceeding: in other words, to make the common law thus extended to all cases--parliamentary as well as judicial--a part of the organic law of the State: and we think it would be unjust to the men who framed and to the men who have so long preserved intact that important provision, were we to confine it only to cases in which a man is called on to give evidence against himself in a prosecution pending against him. This would indeed be to dwarf the spirit and meaning of a great principle to the most insignificant proportions, and would scarcely be in character with the earnest, wise and practical men who proclaimed it. They certainly would scarcely have thought it necessary to guard in their organic law against an evil which had occurred in no civilized community within the memory of men then living, and at the same time to leave to the mutations of legislative will the protection of the citizen from being compelled to give evidence against himself in proceedings against others--an evil of a very practical character, and leading directly to the same result: self-accusation. We do not feel warranted in giving any such narrow and restricted construction to this declaration. It would render the provision wholly nugatory; and we do not think it is required, as has been contended, by the grammatical structure of the section. The portion of that section immediately preceding this important provision does, as must be conceded, refer to proceedings in a pending prosecution, and declares the rights of the accused in such prosecution; commencing with the arraignment, and declaring his rights down to the verdict of the jury; each separate declaration of a right being separated from the others by a comma merely, until, after providing against conviction without a unanimous verdict, the close of that portion of the section is indicated by a semi-colon. Then follows the broader declaration, now under consideration: " Nor shall he" (that is " a man," for it was the rights of man which the...