Ex Parte Buskett

• Decision Date: 16 November 1891
• Citation: 17 S.W. 753,106 Mo. 602
• Parties: Ex parte BUSKETT.
• Court: Missouri Supreme Court

17 S.W. 753

106 Mo. 602

Ex parte BUSKETT.

Supreme Court of Missouri, Division No. 2.

November 16, 1891.

WITNESS — CRIMINATING EVIDENCE — GAMBLING.

The provision of Const. art. 2, § 23, that "no person shall be compelled to testify against himself in a criminal cause," does not exempt a witness from disclosing the names of others than himself who have engaged in gaming, since immunity is afforded him by Rev. St. 1889, § 3819, which provides that no person shall be excused from testifying touching any offense committed by another against the gaming act by reason of his having played at any of the prohibited games, "but the testimony which may be given by such person shall in no case be used against him."

Petition for writ of habeas corpus by J. L. Buskett. Petition denied.

J. B. Harrison and T. J. Jones, for petitioner.

MACFARLANE, J.

This is an application by petition of J. L. Buskett for release on writ of habeas corpus from the custody of John W. Cooper, sheriff of Phelps county, and from the common jail of said county, in which he is confined. The petition and attached record show that petitioner was summoned before the grand jury of Phelps county as a witness, and was asked if he knew the names of any parties or person who have been gambling with cards or otherwise in Phelps county within the last year. To this question he answered, "Yes." Petitioner was then asked who they were, other than himself. This question the witness refused to answer, giving as a reason for such refusal that the answer would criminate himself and "would lead to the divulging of evidence that would convict" him of the misdemeanor. The fact of the refusal to answer was duly communicated to the court. The court decided that the question was proper, and that petitioner should answer, informing him at the same time that his testimony should, in no case, be used against him. Still refusing to answer, he was adjudged guilty of a contempt, and a fine of $25 imposed upon him. In default of payment of the fine, he was ordered committed to the county jail until the fine should be paid. From this confinement he asks to be discharged.

Petitioner insists that he was privileged to refuse to answer the question, on the ground of the protection guarantied him by section 23 of the bill of rights, which provides that "no person shall be compelled to testify against himself in a criminal cause." On the other hand, the state contends that ample protection was afforded petitioner under section 3819, which is as follows: "No person shall be incapacitated or excused from testifying touching any offense committed by another, against any of the provisions relating to gaming, by reason of his having betted or played at any of the prohibited games or gaming devices, but the testimony which may be given by such person shall in no case be used against him." Petitioner insists that this statute infringes his rights under the said section of the constitution, and is therefore void. Waiving the inquiry in this case whether the validity of the judgment imposing the fine on petitioner could be inquired into or impeached in this collateral proceeding, and whether an appeal or writ of error would lie from the judgment, we will consider the real question in the case. Petitioner claims that section 23 of the bill of rights, providing that "no person shall be compelled to testify against himself in a criminal cause," gives him the absolute right to refuse answering any question, or giving any testimony, which would either tend directly to prove him guilty of a crime, or would afford information or point out sources of information which might lead to fastening a crime upon himself; that section 3819 falls short of giving him that full and complete indemnity against prosecutions for crimes about which he may be called to testify, and which may be indirectly disclosed by the evidence given; and that said section is, for that reason, in conflict with section 23 of the bill of rights, and is without force or validity. The common-law maxim, which is thus incorporated in the constitution of the state, has ever been estimated and held as one of the most sacred personal rights guarantied the citizens of this country and of England. It finds a place in every state constitution, as well as in that of the United States, and should therefore receive such liberal construction as will secure to the citizen its full protection against inquisitorial oppression. The right thus secured would be but an empty mockery if its privileges could be impaired under a pretense of legislative regulation.

It becomes proper, then, briefly to inquire into the extent of the privilege thus accorded, in the absence of any statutory protection, and see what, if any, rights are infringed. In People v. Hackley, 24 N. Y. 74, DENIO, J., in considering a like provision of the constitution of New York, says: "The history of England in early periods furnishes abundant instances of unjustifiable and cruel methods of extorting confessions; and the practice at this day in the criminal tribunals of the most polished countries in continental Europe is to subject an accused person to a course of interrogatories which would be quite revolting to a mind accustomed only to the more humane system of English and American criminal law. It was not, therefore, unreasonable to guard, by constitutional sanctions, against repetition of such practices in this state; and it is not at all improbable that the true intention of the provision in question corresponds...