Ex Parte Senior

• Decision Date: 28 February 1896
• Citation: 19 So. 652,37 Fla. 1
• Parties: Ex parte SENIOR.
• Court: Florida Supreme Court

19 So. 652

37 Fla. 1

Ex parte SENIOR.

Florida Supreme Court

February 28, 1896

Habeas corpus by Ed. Senior, Jr., for a discharge from imprisonment under a conviction of contempt. Prisoner remanded.

Syllabus by the Court

SYLLABUS

1. The rule stated in Ex parte Edwards, 11 Fla. 174, that in the absence of statutory limitations or restrictions the power of the several courts over contempt is omnipotent, and its exercise is not to be inquired into by any other tribunal, is subject to the qualification that the conduct charged as constituting the contempt must be such that some degree of delinquency or misbehavior can be predicated of it; for if the act be plainly indifferent or meritorious, or if it be only the assertion of an undoubted right of the party, it will not become a criminal contempt by being adjudged to be so.

2. The ancient maxim of the common law, 'Nemo tenetur seipsum prodere,' is imbedded in the provision in the twelfth section of the bill of rights of our constitution, that no person shall be compelled in any criminal case to be a witness against himself; and such provision should be broadly and liberally construed, to secure the protection designed to be accomplished by it.

3. The purpose of the provision mentioned is to exempt one from being compelled, in any judicial or other proceeding against himself, or upon the trial of issues or investigation of facts between others, to disclose facts or circumstances that can be used against him as admissions tending to prove guilt or connection with any criminal offense, of which he may then or afterwards be charged, or the sources from which, or the means by which, evidence of its commission, or his connection with it, may be obtained.

4. The right of privilege against disclosure of incriminatory statements or evidence is personal to the witness, he alone being entitled to invoke its protection, and it may be waived by him.

5. While the witness must judge of the effect of his answer, and should not be required to explain how it will criminate him yet the court must determine, under all the circumstances of the case, whether such will be its tendency, from the question asked; and where, from the nature of the investigation and the character of the testimony sought, it reasonably appears that the answer may criminate, or tend to criminate, the witness has the right to claim his privilege and is not bound to answer.

6. The court should inform a witness of his right of privilege when the circumstances of the case call for it, but when he, with full knowledge of his rights, consents to testify about the very matter that may criminate him, without claiming his privilege, he must submit to a full, legitimate cross-examination in reference thereto.

7. Section 2787, Rev. St., providing that whoever casts knowingly, an illegal vote at an election in this state held according to law, shall be punished by imprisonment in the state prison not exceeding six months, or by fine not exceeding $100, applies to illegal voting at municipal elections in this state; and a party who votes at such an election is not compelled to testify as to his vote when examined as a witness in a suit involving the validity of the election, but if, with full knowledge of his rights, he consents to testify that he did vote, and his ballot was received by the judges and inspectors of the election, he must submit to a full cross-examination as to his qualifications as a voter.

COUNSEL Blount & Blount, C. B. Parkhill, and John Egan, for petitioner.

S. R. Mallory, John S. Beard, C. M. Jones, and John C. Avery, for respondent.

OPINION

MABRY, C.J.

The return of the sheriff to the writ of habeas corpus shows that on the 17th day of February, 1896, pending the trial of a case in quo warranto proceedings instituted in the name of the attorney general, on the relation of William E. Anderson against Pat. McHugh,--the issue being whether the said Anderson or McHugh had received the highest number of votes at an election for mayor of the city of Pensacola held in said city on the 4th day of June, 1895,--the petitioner, Ed. Senior, Jr., was called and sworn as a witness for respondent, McHugh, and, having been advised by the court that he need not testify to any fact tending to convict him of crime, testified, in reply to questions by respondent's counsel, that he voted at said election, in election precinct 13, for Pat. McHugh for mayor, and that his ballot was received by the inspectors. Thereupon, being turned over to the state for cross-examination, the following questions were propounded to said witness, viz.:

'Where were you living at the time you cast your ballot?'

'How long had you been living at that place?'

'At what place were you living at the time of the last city election?'

'Did you have a certificate of registration?'

'Where were you born?'

'Were you born in the United States?'

'Did you ever take out any naturalization papers?'

'Are you twenty-one years of age?'

'How long have you been living in the state of Florida?'

'How long have you been living in the county of Escambia?'

'How long have you been living in the city of Pensacola?'

'Were you ever registered?'

'Did you take any oath?'

Thereupon he refused to answer any of said questions, upon the ground that the answers would tend to criminate him; and the court deciding that the witness should answer the questions, and ordering him to make answers thereto, and still persisting in his refusal, he was adjudged to be in contempt of court, and ordered to pay a fine and stand committed, in the custody of the sheriff, until the fine was paid. Upon the refusal of the witness to pay the fine, he was taken into custody by the sheriff, and, still remaining in custody, has sued out a writ of habeas corpus, and asks to be discharged.

A suggestion comes in limine, from counsel opposed to the writ, that the court will not review on habeas corpus an order made by the circuit court adjudging a person guilty of contempt. Reference is made to the decision in Caro v. Maxwell, 20 Fla. 17, holding that a contempt order will not be reviewed on appeal or writ of error, and also to the language used in Ex parte Edwards, 11 Fla. 174, 'that in the absence of any statutory limitations or restrictions the power of the several courts over contempt is omnipotent, and its exercise is not to be inquired into by any other tribunal. This is the great bulwark established by the common law for the protection of courts of justice, and for the maintenance of their dignity, authority, and efficiency, and neither in England nor in the United States has this unrestricted power been seriously questioned.' The first case referred to has no application here, as we have no writ of error or appeal to review an order of a circuit court in a contempt matter. The rule announced in the second case is not now questioned, but its application must be confined to proper limits. As a general rule, habeas corpus does not lie to correct mere irregularities of procedure where there is jurisdiction; and in order to sustain the writ there must be illegality, or want of jurisdiction. Ex parte Pitts, 35 Fla. 149, 17 So. 76; Ex parte Prince, 27 Fla. 196, 9 So. 659; Ex parte Bowen, 25 Fla. 214, 6 So. 65. When a person has been taken into custody under an order of a court exercising proper jurisdiction, a habeas corpus to discharge the person so taken involves a collateral attack on the order under which he is held, and wellestablished rules forbid an investigation into matters of mere irregularity in procedure. But illegality in matter of law, or want of jurisdiction, may be inquired into, and the decision of the lower court as to such matter is not conclusive. The following language taken from People v. Kelly, 24 N.Y. 74,--a contempt proceeding,--is expressive of our view on the subject, viz.: 'But this rule is, of course, subject to the qualification that the conduct charged as constituting the contempt must be such that some degree of delinquency or misbehavior can be predicated of it; for if the act be plainly indifferent or meritorious, or if it be only the assertion of the undoubted right of the party, it will not become a criminal contempt by being adjudged to be so. The question whether the alleged offender really committed the act charged will be conclusively determined by the order or judgment of the court, and so with equivocal acts, which may be culpable or innocent according to the circumstances; but, where the act is necessarily innocent or justifiable, it would be preposterous to hold it a cause of imprisonment. Hence, if the refusal of Mr. Hackley, the relator, to answer the question propounded to him, was only an assertion of a right secured to every person by the constitution, it was illegal to commit him for a contempt.' It cannot certainly be true that the decision of an inferior court adjudging a matter to be a contempt precludes all investigation as to the legality or proper authority of the court to make such order; and, on the other hand, it must not be forgotten that in such matters, when the court is acting within the sphere of its legitimate powers, the appellate tribunal will not undertake to review the correctness of conclusions as to matters of fact, or questions of mere procedure. In re Dill, 32 Kan. 668, 5 P. 39.

In the present case there was a refusal to answer questions propounded in open court during the trial of a cause within the jurisdiction of the circuit court to hear and determine and the refusal was placed upon the ground that the answers to the questions would tend to criminate the party to whom the questions were propounded. If, under the circumstances disclosed by the record, the party questioned had a clear...