Ex Parte Carter

• Decision Date: 04 February 1902
• Citation: 66 S.W. 540,166 Mo. 604
• Parties: Ex parte CARTER.
• Court: Missouri Supreme Court

66 S.W. 540

166 Mo. 604

Ex parte CARTER.

Supreme Court of Missouri, Division No. 2.

February 4, 1902.

WITNESSES — TESTIFYING AGAINST ONESELF — CONSTITUTIONALITY OF STATUTE.

Rev. St. 1899, § 2206, provides that 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 bet or played at any of the prohibited games or gaming devices, but that the testimony which may be given by such person shall in no case be used against him. Const. art. 2, § 23, declares that no person shall be compelled to testify against himself in a criminal case. Held, that the statute is violative of the constitutional provision, inasmuch as a witness cannot be compelled to give any evidence which may lead to his prosecution.

Habeas corpus by Arnot Carter against the sheriff of Shannon county to secure petitioner's release from the sheriff's custody. Petitioner discharged.

James Orchard, for petitioner.

SHERWOOD, J.

This proceeding has been instituted to test the validity of section 2206, Rev. St. 1899, which reads this way: "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." It seems that a prosecution was begun against W. R. Shuck et al., down in Shannon county, for playing "pitch" and "seven-up" for money and drinks. On the trial of that cause, petitioner was sworn as a witness, whereupon the following colloquy ensued between the prosecuting attorney and the witness:

"Q. Are you acquainted with W. R. Shuck? A. Yes, sir. Q. I will ask you — He stands charged here with betting on a game of pitch, also on a game of seven-up, last July some time. I will ask you to state to the jury if you saw them along about that time playing? A. I must refuse to testify in this case. I am afraid I would incriminate myself. Q. I will ask you to state, to this jury if you did not, some time within a year prior, — some time last July, — if they were not over here at this place, and you didn't see them playing pitch for the drinks? A. As I told you before, I refuse to testify, on the same grounds.

"Your honor, I insist that the witness answer the questions.

"The Court: Answer the question. A. I refuse to answer the question, because it would lead to evidence which would incriminate myself, or lead to witnesses by whose testimony I would be convicted, and would humiliate and degrade me, and, if I should give evidence concerning the whole case, it would criminate me."

Upon such refusal the court fined the petitioner for contempt, and ordered him into the custody of the sheriff, in whose custody he now is.

On behalf of his constitutional exemption from being required to answer such questions, petitioner contends that he did not have to answer them. The petitioner contends that his confinement is illegal, and in violation of section 23 of article 2 of the constitution of the state of Missouri, which says "that no person shall be compelled to testify against himself in a criminal case," and that said imprisonment is in violation of that part of the fifth amendment to the constitution of the United States which says, "nor shall any person be compelled, in any criminal case, to be a witness against himself."

The rulings of various courts have not been uniform on the question here presented; one court, and perhaps more, holding to the extreme view that only in a criminal case wherein the person sought to be made a witness was also a party defendant in such case did the constitutional prohibition apply. Thus in New York the constitution declared that no person shall "be compelled, in any criminal case, to be a witness against himself." Const. art. 1, § 6. And the act there questioned provided that every person offending against the statute should "be a competent witness against any other person so offending," and might be compelled to give evidence before any magistrate or grand jury, or in any court, in the same manner as other persons, "but the testimony so given shall not be used in any prosecution or proceeding, civil or criminal, against the person so testifying." Laws 1853, c. 539, § 14. A similar provision was contained in chapter 446 of the Laws of 1857, in section 52. And upon this it was said: "The term `criminal case,' used in the clause, must be allowed some meaning, and none can be conceived, other than a prosecution for a criminal offense. But it must be a prosecution against him, for what is forbidden is that he should be compelled to be a witness against himself. Now, if he be prosecuted criminally touching the matter about which he has testified upon the trial of another person, the statute makes it impossible that his testimony given on that occasion should be used by the prosecution on the trial. It cannot, therefore, be said that in such criminal case he has been made a witness against himself by force of any compulsion used towards him to procure in the other case testimony which cannot possibly be used in the criminal case against himself." And thereupon it was ruled that, as the witness Hackley was not a party defendant to the prosecution, he was compellable to testify before the grand jury. People v. Kelly, 24 N. Y. 74.

In Massachusetts, however, the provision of the constitution was that no subject shall be "compelled to accuse or furnish evidence against himself." Const. pt. 1, art. 12. The statute bearing on that subject provided: "No person who is called as a witness before the joint special committee on the state police, shall be excused from answering any question or from the production of any paper relating to any corrupt practice or improper conduct of the state police, forming the subject of inquiry by such committee, on the ground that the answer to such question or the production of such paper may criminate or tend to criminate himself, or to disgrace him, or otherwise render him infamous, or on the ground of privilege; but the testimony of any witness examined before said committee upon the subject aforesaid or any statement made or paper produced by him upon such an examination, shall not be used as evidence against such witness in any civil or criminal proceeding in any court of justice." St. 1871, c. 91. The witness Emory was brought before the joint special committee of the senate and house, and this interrogatory propounded to him: "Have you ever paid any money to any state constable, and do you know of any corrupt practice of improper conduct of the state police? If so, state fully what sums, and to whom you have thus paid money, and also what you know of such corrupt practice and improper conduct." To this he answered: "I decline to answer the question, upon the grounds — First, that the answer thereto will accuse me of an indictable offense; second, that the answer thereto will furnish evidence against me by which I can be convicted of such an offense." For this refusal he was imprisoned. Being brought before Judge Wells on habeas corpus, the case was fully argued, and upon conference with the other judges of the supreme judicial court the opinion delivered by Judge Wells (In re Emery, 107 Mass. 172, 9 Am. Rep. 22) met with the unanimous concurrence of all the judges. In that opinion it is said in regard to the question propounded: "It is apparent that an affirmative answer to the question put to him might tend to show that he had been guilty of an offense, either against the laws relating to the keeping and sale of intoxicating liquors, or under the statute for punishing one who shall corruptly attempt to influence an executive officer by the gift or offer of a bribe (Gen. St. c. 163, § 7)." Regarding the clause quoted from the bill of rights, the opinion says: "By the narrowest construction, this prohibition extends to all investigations of an inquisitorial nature instituted for the purpose of discovering crime, or the perpetrators of crime, by putting suspected parties upon their examination in respect thereto in any manner, although not in the course of any pending prosecution. But it is not even thus limited. The principle applies equally to any compulsory disclosure of his guilt by the offender himself, whether sought directly as the object of the inquiry, or indirectly and incidentally for the purpose of establishing facts involved in an issue between other parties. If the disclosure thus made would be capable of being used against himself as a confession of crime, or an admission of an offense by himself, in any prosecution then pending or that might be brought against him therefor, such disclosure would be an accusation of himself, within the meaning of the constitutional provision. In the absence of regulation by statute, the protection against such self-accusation is secured by according to the guilty person, when called upon to answer as witness or otherwise, the privilege of then avowing the liability and claiming the exemption, instead of compelling...