Doyle v. Wilcockson
| Decision Date | 25 October 1918 |
| Docket Number | No. 30614.,30614. |
| Citation | 169 N.W. 241,184 Iowa 757 |
| Parties | DOYLE v. WILCOCKSON, DISTRICT COURT JUDGE. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Mahaska County; K. E. Willcockson, Judge.
We have two questions: Does the fact that the relator gave testimony before the grand jury of Mahaska county tending to prove that she had violated the laws against the unlawful sale or keeping of liquors since she was enjoined from thus selling or keeping give her immunity against being punished for violating said injunction? Was the court without jurisdiction because the injunction was granted on a service of notice which is in law no service? The respondent adjudged relator guilty of contempt of court in violating the alleged injunction, and this proceeding is the result. Annulled.John N. McCoy, of Oskaloosa, for relator.
Burrell & Devitt, of Oskaloosa, for respondent.
[1] I. Though there are disputes as to what was testified to before the grand jury, there is no conflict on what is essential on this review: Relator went before the grand jury in response to a subpœna, and in answer to questions propounded to her gave testimony which tends to prove she violated an alleged injunction restraining her from unlawfully keeping or selling liquor. Subsequently she was charged with being in contempt for violating said injunction and respondent adjudged her to be guilty. She pleaded in abatement and in bar that such prosecution is violative of the provision in the Constitution of Iowa (article 1, § 9) that no one shall be deprived of liberty or property without due process of law, and violative of section 4612 of the Code. Statute provisionssubstantially like section 4612 have been held to be the equivalent of constitutional guaranties that liberty and property shall not be taken without due process of law, and that no one shall be compelled by his own testimony to aid in his being convicted of crime. See Bedgood v. State, 115 Ind. 275, 17 N. E. 623;In re Buskett, 106 Mo. 602, 17 S. W. 753, 14 L. R. A. 407, 27 Am. St. Rep. 378;State v. Quarles, 13 Ark. 307;Higdon v. Heard, 14 Ga. 255; Ex parte Rowe, 7 Cal. 184;La Fontaine v. Ass'n, 83 N. C. 132. Since, then, the relator invokes this statute, she inferentially concedes its validity, and her plea that certain constitutional provisions have been violated is, on analysis, a claim that said statute, which is a mere amplification of such constitutional provisions, has been disregarded. The question is whether this contention is sustained.
[2] Ia. Before going further it will be well to dispose of incidental questions. Said statute enacts that evidence obtained under its provisions shall not be used in prosecution for described crimes. Respondent says that the statute does not apply because the evidence given by relator, was, if used at all, used in support of an information charging contempt of court, and that trial of such a charge is not a prosecution for crime, because we held in Judge v. Powers, 156 Iowa, 251, 136 N. W. 315, Ann. Cas. 1915B, 280, that being adjudged guilty of contempt of court is not a conviction of crime. Relator answers that the Powers decision should be overruled, that the great weight of authority is that one may not rightfully be compelled to give testimony against himself in proceedings in which fine and imprisonment may be imposed, though the proceeding be not in strictness a prosecution for crime, and that contempt proceedings are of that class. We think the law upholds the relator in this contention. See Robson v. Doyle, 191 Ill. 556, 61 N. E. 435;Boyd v. United States, 116 U. S. 616, 6 Sup. Ct. 524, 29 L. Ed. 746;People v. Butler, 201 Ill. 236, 66 N. E. 349;Counselman v. Hitchcock, 142 U. S. 547, 12 Sup. Ct. 195, 35 L. Ed. 1110. We have therefore no occasion to consider whether Judge v. Powers should or should not be overruled.
[3] Ib. The respondent presents that because a grand jury cannot compel answers, and on refusal to answer the court must be resorted to to compel answer or punish for refusal to answer, any testimony given before the grand jury is not within the prohibition because not given under compulsion. Further, that relator may not complain because she claimed no privilege. We are of opinion that where appearance before the grand jury is on subpœna, and answers are made in response to question by the county attorney or members of the jury, that such answers are compelled testimony in the view of immunity provisions. See Counselman v. Hitchcock, 142 U. S. 547, 12 Sup. Ct. 195, 35 L. Ed. 1110.
[4] We think that such compelled testimony may base immunity, though no privilege is claimed before the grand jury. The mere suggestion of what might be done before a body of whose action the witness has no advance notice, and before whom he may not have counsel, suffices to support this holding.
[5] Ic. Respondent argues that the prohibition runs only against testimony given in some proceeding against or investigation dealing with the witness whose testimony therein is proposed to be used. It seems that the investigation in the course of which relator was interrogated was not one directed against herself, but was one instituted concerning one Brown. We are of opinion that this is immaterial, and that, if the testimony be otherwise of a character that its use is prohibited by the statute, it does not matter that it was elicited in a proceeding against or investigation of some one other than the witness. See Counselman v. Hitchcock, 142 U. S. 547, 12 Sup. Ct. 195, 35 L. Ed. 1110.
[6] Id. This disposes as well of one contention made by the relator--that she was and should not have been prosecuted for a crime connected with or growing out of an act upon which the proceeding in which she was compelled to testify was based. Whatever be the status of the proceeding for contempt of court instituted against the relator, she was not prosecuted for such an act. Assume here that her testimony before the grand jury was used in the proceeding for contempt of court, still the crime to which the investigation in which she testified was directed was the conduct of Brown. It follows that relator was not prosecuted for the act or anything in connection therewith which was being investigated in the proceeding in which she gave her testimony.
[7] II. We have already pointed out that the essence of relator's complaint is that section 4612 of the Code was violated, and we have disposed of one provision of that statute. There remains for consideration another of its provisions, which is, as we construe it, that testimony such as relator gave shall not be used against her. That provision does not create an absolute immunity because one has been compelled to give testimony that might base or help obtain his conviction of a crime. If such testimony is never used, directly or indirectly, to obtain a conviction, and neither it nor any link in it suggests or obtains the testimony that is used, the statute has not been breached. In the true sense, this part of the statute is not an immunity statute at all. It is a handicap upon prosecution. The fact that testimony has been improperly compelled is of no consequence if conviction is obtained without any help from such testimony. Though the evidence given before the grand jury was such as that, if produced in court, it would require a finding of guilt, that is immaterial if the tribunal that adjudges guilt never heard of this testimony, and founds its judgment upon other testimony in no wise suggested by that taken before the grand jury, and where such independent evidence is sufficient to sustain the judgment. An amplification of the doctrine of error without prejudice is involved. Let it be never so much condemned by law to obtain certain testimony, that wrong should not set aside a judgment upon abundant evidence wholly distinct from and unaided by the testimony wrongfully obtained. An application of this principle disposes of this branch of the case. The answer complains that the testimony obtained from relator was connected with the charge upon which she was found guilty; that she was compelled “to disclose the circumstances of her offense as shown by her evidence”; that she was compelled to testify that she got a barrel of beer every week from Albert Lea, and ordered her whisky from Warsaw, Ill.; that the grand jury asked her how much she got for her beer a bottle, and that she told them she got 35 cents; and that she was compelled to give “other evidence” which tended to incriminate herself. On examination we find that this “other evidence” is this: The matter under investigation was whether one Brown had violated the liquor laws. Relator was interrogated on whether she had bought liquor of Brown during stated times, and denied having done so. She stated that she had ordering slips, and that she sent them to the Schmidt Brewing Company at Albert Lea when ordering “her stuff,” and that one Joe Smith collected for this company about once a month; also that she got a barrel of beer every two weeks, and when she needed extra she sent for it. To put it at its strongest for the relator, she stated in response to questions by the county attorney, that she had a standing order for a barrel of beer a week, and what draymen did her hauling; and she stated that what whisky she ordered was at Warsaw, Ill.; that since she quit selling beer she quit ordering from Warsaw, because she did not like Warsaw beer for personal use, and she now ordered it from Albert Lea.
[8] The only way this evidence got into the prosecution for contempt was on the issue tendered by the relator on whether testimony bearing on the prosecution for contempt had been obtained from her and if so whether it had been obtained by compulsion. None of it was tendered as substantive evidence in support of the information. The substantive testimony was, with one exception to be noted, utterly distinct from anything that was gone into before the...
To continue reading
Request your trial