Duckworth v. District Court of Woodbury County

• Decision Date: 21 January 1936
• Docket Number: 43444.
• Citation: 264 N.W. 715,220 Iowa 1350
• Parties: DUCKWORTH v. DISTRICT COURT OF WOODBURY COUNTY et al.
• Court: Iowa Supreme Court

264 N.W. 715

220 Iowa 1350

DUCKWORTH v. DISTRICT COURT OF WOODBURY COUNTY et al.

No. 43444.

Supreme Court of Iowa.

January 21, 1936

Appeal from District Court, Woodbury County; Earl Peters, Judge.

This is a certiorari proceeding brought in this court by Max Duckworth to review an order by Earl Peters, Judge of the District Court sitting in Woodbury County, Iowa, in which said order the said Duckworth was committed for contempt upon refusal of the said Duckworth to answer certain questions propounded to him as a witness for the state in the case of State of Iowa v. Edward L. O'Connor, then in process of trial in said court.

Writ sustained, order annulled, and petitioner discharged.

George Gorder, of Sioux City, for petitioner.

H. M Havner, Sp. Pros., of Des Moines, and M. E. Rawlings, Co. Atty., of Sioux City, for respondents.

HAMILTON, Justice.

The sole question involved in this case is: Did the petitioner Max Duckworth, by appearing before the grand jury of Woodbury county and testifying, waive his right to claim his privilege or immunity from testifying at the trial of the case in the district court, wherein the indictment of the defendant on trial was based in part upon the testimony of the petitioner given before the grand jury, on the ground that his answers to questions propounded to him would tend to incriminate him and expose him to public ignominy? If by testifying before the grand jury he did thus waive his right to later claim his privilege, then the trial court was right in holding the witness should answer, and in inflicting punishment for contempt of court upon the witness for refusing to answer and the writ should be annulled. On the other hand, if his conduct in testifying before the grand jury did not amount to a waiver, then the order of the court was wrong and illegal and the writ should be sustained. This precise question has never been squarely before this court and hence has never been determined in this state. That the questions which were propounded to the witness called for evidence which was relevant and material to the issues involved in the case on trial is not questioned by the petitioner. Neither is it claimed by respondent that the answers would not tend to incriminate the witness and expose him to public ignominy. The respondent contended, and the lower court found, that by appearing before the grand jury and testifying the witness waived his privillege.

The general rule, which is almost universally adhered to by courts of last resort, that a witness may refuse to answer any question which tends to incriminate him, is of very ancient origin. It has been the established rule in England and America from the earliest times; it has been looked upon and considered as a natural right to which every one is entitled. As said in an early case in Georgia, Marshall v. Riley, 7 Ga. 367, 370: " The maxim of the Common Law * * * that no man is bound to accuse himself of any crime, or to furnish any evidence to convict himself of any crime, is founded in great principles of constitutional right, and was not only settled in early times in England, but was brought by our ancestors to America, as a part of their birthright. This * * * is a maxim of the law, founded upon the principles of British freedom, and may be considered as one of our constitutional rights and privileges."

Chief Justice John Marshall in discussing this question in Burr's Trial, Fed.Cas. No. 14,692e, 1 Burr's Trial, 244, said: " Many links frequently compose that chain of testimony which is necessary to convict any individual of a crime. It appears to the court to be the true sense of the rule that no witness is compellable to furnish any one of them against himself. It is certainly not only a possible but a probable case that a witness, by disclosing a single fact, may complete the testimony against himself, and to every effectual purpose accuse himself as entirely as he would by stating every circumstance which would be required for his conviction. That fact of itself might be unavailing, but all other facts without it would be insufficient. While that remains concealed within his own bosom he is safe; but draw it from thence, and he is exposed to a prosecution. The rule which declares that no man is compellable to accuse himself would most obviously be infringed by compelling a witness to disclose a fact of this description. What testimony may be possessed, or is attainable, against any individual the court can never know. It would seem, then, that the court ought never to compel a witness to give an answer which discloses a fact that would form a necessary and essential part of a crime which is punishable by the laws." See, also, Counselman v. Hitchcock, 142 U.S. 547, 12 S.Ct. 195, 35 L.Ed. 1110.

By the Fifth Amendment to the Constitution of the United States it is provided, among other things: " No person * * * shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law." A similar provision is found in the Constitutions of many of the states of the Union. Our Constitution, however, contains no such specific provision.

In the case of State v. Height, 117 Iowa 650, at page 654, 91 N.W. 935, 937, 59 L.R.A. 437, 94 Am.St.Rep. 323, Justice McClain in discussing this question said: " The rule against requiring a witness to give self-criminating evidence in any judicial proceeding is much older than our constitution. It is one of the fundamentals of the common law. The rule itself and the reasons for it are thus stated by an eminent authority: ‘ Upon a principle of humanity, as well as of policy, every witness is protected from answering questions by doing which he would criminate himself,-of policy, because it would place the witness under the strongest temptation to commit the crime of perjury; and of humanity, because it would be to extort a confession of the truth by a kind of duress, every species and degree of which the law abhors. It is pleasing to contrast the humanity and delicacy of the law of England in this respect with the cruel provisions of the Roman law, which allowed criminals, and even witnesses in some instances, to be put to the torture for the purpose of extorting a confession.’ 1 Starkie, Ev., 41. And see 1 Rosc.,Cr.Ev., 150. * * * The origin of the doctrine embodied in the maxim, ‘ Nemo tenetur seipsum accusare,’ seems to be obscure. Perhaps it originated in a protest against the inquisitorial procedure of the ecclesiastical courts, and was introduced by statute. See article by Prof. Wigmore in 5 Harvard Law Review, 71. But at any rate it became a general principle of the common-law system of jurisprudence before the settlement of this country, and was regarded as a guaranty against inquisitorial proceedings."

In speaking of the fact that our Constitution contains no specific provision on this subject, Justice McClain further says: " We cannot concede that there is in the constitution of our state no guaranty against inquisitorial proceedings for the purpose of compelling a defendant to disclose criminating evidence. Our constitution does explicitly provide (article 1, § 9) that ‘ no person shall be deprived of life, liberty or property without due process of law,’ and the term ‘ due process of law’ has received by this court, as well as by all the courts of this country, a very broad and liberal interpretation. * * * Notwithstanding the fact already suggested that the cases heretofore cited refer to a form of constitutional provision not found in our own bill of rights, we are convinced that the principle itself is too fundamental to have been purposely omitted from the charter of liberties of the people of Iowa, and that, had there been no such specific provision anywhere, the same result would have been reached under the general guaranty of due process of law. If such a guaranty is not thus to be implied, then we have in this state the anomalous situation that by legislative provision the inquisitorial proceedings, so generally referred to as reprehensible, and the absence of which is so constantly mentioned as one of the excellencies of the common law, might be introduced. There would be nothing unconstitutional, under such a construction, in a statute which should restore torture by the thumbscrew or the boot as a legitimate means of securing evidence in a criminal prosecution. * * * Lord Camden in Entick v. Carrington, 19 How.St.Tr. 1030, quoted at length in Boyd v. U.S. supra [116 U.S. 616, 622, 6 S.Ct. 524, 29 L.Ed. 746, speaking of the underlying doctrine in support of this rule, and said]: ‘ * * * Whether this proceedeth from the gentleness of the law toward criminals, or from a consideration that such a power would be more pernicious to the innocent than useful to the public, I will not say. It is very certain that the law obligeth no man to accuse himself, because the necessary means of compelling self-accusation, falling upon the innocent, as well as the guilty, would be both cruel and unjust. * * * The innocent would be confounded with the guilty." ’

In this state we have a statutory provision, section 11267 of the Code, which provides: " When the matter sought to be elicited would tend to render a witness criminally liable, or to expose him to public ignominy, he is not compelled to answer, except as otherwise provided." By section 11268 certain exceptions are set forth, and by section 11269, one who is compelled to give testimony concerning the matters contained in the exceptions if the matter tends to expose him to public ignominy or incriminate him, is immune from prosecution for any crime which such testimony or evidence tends to prove or to which the same relates.

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