Flanary v. Commonwealth

• Decision Date: 18 June 1912
• Citation: 75 S.E. 289,113 Va. 775
• Parties: FLANARY . v. COMMONWEALTH.
• Court: Virginia Supreme Court

75 S.E. 289

(113 Va. 775)

FLANARY .

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

June 18, 1912.

1. Witnesses (§ 304^*)—Privilege—Statutory Protection. A witness in a criminal proceeding cannot avail himself of the privilege against giving incriminating testimony afforded by Const, art.

1. § 8 (Code 1904, p. ccix), where a statute gives him full immunity against liability to prosecution for any unlawful act which he may disclose in such testimony.

[Ed. Note.—For other cases, see Witnesses, Dec. Dig. § 304.*]

2. Witnesses (§ 304*)—Privilege—Statutory Protection.

On a criminal trial a witness was asked whether, after an election, he testified before the grand jury touching the violation of any clause or part of Code 1904, § 145a, and also touching the violation of any other election laws, to which he replied that he went before the grand jury and testified concerning breaches of the election laws. Held, that the answer, considered in connection with the question, showed that he had testified relative to violations of section 145a, and hence was entitled to whatever immunity was afforded by subsection 9, § 145a, Code Supp. 1910, providing that no witness, giving evidence in any prosecution or other proceeding under that act, shall be proceeded against for any offense against that act, or against any other election law, committed by him at or in connection with the same election.

[Ed. Note.—For other cases, see Witnesses, Cent. Dig. §§ 1051, 1052; Dec. Dig. § 304.*]

3. Criminal Law (§ 42*)—Privilege—"Proceeding."

A witness testifying before the grand jury relative to violations of section 145a, Code Supp. 1910, is entitled to the immunity afforded by subsection 9, whether the grand jury's investigation results in an indictment, presentment or information, or not; such inquiry by the grand jury constituting a "proceeding."

[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 45-48; Dec. Dig. § 42.*

For other definitions, see Words and Phrases, vol. 6, pp. 5631-5038.]

4. Witnesses (§ 304*)—Privilege—Statutory Protection. Under such subsection 9, a person who testified before the grand jury relative to violations of section 145a, Code Supp. 1910, at a particular election, can be compelled to testify on the trial of a person charged with accepting a bribe to vote at the same election for a particular candidate, under section 3853, although his testimony incriminates himself; that section affording immunity from prosecution under Code 1904, § 145a, or any other election law, coextensive with the constitutional privilege of silence.

[Ed. Note.—For other cases, see Witnesses, Cent. Dig. §§ 1051, 1052; Dec Dig. § 304.*]

Error to Circuit Court, Lee County.

C. R. Flanary, a witness on the trial of Dock Burchett for crime, was adjudged guilty of contempt of court, and he brings error. Affirmed.

J. C. Noel, J. W. Orr, and M. G. Ely, for plaintiff in error.

Samuel W. Williams. Atty. Gen., E. E. Skaggs, and E. W. Pennington, for the Commonwealth.

KEITH, P. Dock Burchett was indicted in the circuit court of Lee county at its December term, 1911, for unlawfully and corruptly receiving from C. R. Flanary $40, under an agreement with him that he, the said Dock Burchett, would vote for J. D. Edds, candidate for clerk, and other candidates in said election, against the peace and dignity of the commonwealth. To this indictment Burchett pleaded not guilty, whereupon a jury was sworn to try the issue, and the commonwealth placed upon the stand C. R. Flanary, and asked him certain questions connected with and relating to the offense charged in the indictment, which the witness refused to answer, because, as he stated, to answer any of the said questions would either incriminate or tend to incriminate himself, and thereupon the court adjudged the witness to be in contempt of court, and assessed against him a fine of $25 for said alleged contempt, to which judgment Flanary obtained a writ of error.

The petitioner contends that the judgment of the circuit court violates section 8 of the Bill of Rights, article 1 of the Constitution (Code 1904, p. ccix), which declares, that no man shall be "compelled in any criminal proceeding to give evidence against himself"; that the privilege guaranteed by this constitutional provision relates to the personal liberty of the citizen, and it is now a generally accepted principle that such constitutional provisions should be liberally construed and given full force, or the intent thereof will be unavailing; that, being compelled to answer said questions, the petition-er would have been deprived of this constitutional right, guaranteed to him by both the Constitution of the United States and the Constitution of Virginia, as construed by this court in the cases of Cullen v. Commonwealth, 65 Va. 624, Temple v. Commonwealth, 75 Va. 892, and Kendrick v. Commonwealth, 78 Va. 490.

In Cullen's Case, supra, the court said: "By the eighth section of the bill of rights of Virginia a person is not only secured against giving evidence against himself on his own trial, but he cannot be required, on the trial of another, to testify, if his evidence will tend to criminate himself, " and that, "even if a person might be required to give evidence on the trial of another which might tend to criminate himself, if the statute afforded him a complete indemnity, by discharging him from all prosecution for the offense (of which quære), the act of October 81, 1870 (Acts 1869-70, c. 355), amending section 1, c. 12, of the Code of 1860, does not afford that indemnity, and therefore, in requiring any person engaged in a duel to testify against another prosecuted for having fought such duel, is unconstitutional." It appears from that case that the point decided by the court was that the statute, which it was claimed afforded indemnity to the accused and by virtue of which he was adjudged guilty in the hustings court of the city of Richmond for refusing to testify, was held not to afford a sufficient indemnity against prosecution, and the question was left undecided as to whether or not it was in the power of the Legislature to afford him a complete indemnity by discharging him from all prosecution for the offense.

In Temple's Case, supra, one Berry was indicted for setting up and promoting a lottery, and Temple was called by the commonwealth as a witness. He refused to testify, upon the ground that his answers might tend to incriminate him; but, the commonwealth relying upon chapter 195, § 20, of the Code of 1873, as affording the witness indemnity from prosecution, a fine was imposed upon the witness, who brought the case to this court, where it was held that the section of the Code relied upon, "which provides that a witness giving evidence in a prosecution for unlawful gaming shall never be proceeded against for any offense of unlawful gaming committed by him at the time and place indicated in such prosecution, does not apply to a prosecution for managing and conducting a lottery, and a witness cannot be required to testify in such a case if he will thereby criminate himself." In that case the opinion was delivered by Judge Christian, and Judge Staples delivered an opinion, concurring in that of Judge Christian, that the "indemnity afforded the witness in prosecutions for gaming by the twentieth section of chapter 195, Code of 1873, is not extended to witnesses in prosecutions for violation of the laws against lottery dealing. Upon that ground I think the witness in this case would not be compelled to answer the question asked him by the attorney for the commonwealth."

Continuing, the judge said: "If this were a prosecution for unlawful gaming, as defined by our statutes, I think the witness would be bound to testify; for he is fully protected by the very provisions of the twentieth section already adverted to. It is very true I concurred with the majority of the court in Cullen's Case, 65 Va. 624; but the question whether the Legislature may not compel the witness to answer by affording him ample indemnity was left undecided in that case. I wish further to say that subsequent reflection has led me to entertain considerable doubt of the correctness of a good deal that was said in Cullen's Case, and, if the occasion occurs, I feel myself at liberty to reconsider the whole subject."

In Kendrick v. Commonwealth, 78 Va. 490. Kendrick was sworn and sent to the grand jury to testify as to a charge against Lyon of unlawful gaming, and refused to answer questions propounded by the grand jury, because the answer would tend to criminate and disgrace him. A majority of the court held, Judge Fauntleroy delivering the opinion, that sections 20 and 22, pp. 314, 315. subc. 10, c. 311, Acts 1877-78, New Criminal Procedure, "secures full protection to witnesses testifying in prosecutions for unlawful gaming, and Kendrick is not justified in refusing to testify on the ground that his answer will tend to criminate and disgrace him."

The statute under which indehmity in that case was asserted enacts that "no person, prosecuted for unlawful gaming, shall be competent to testify against a witness for the commonwealth in such prosecution touching any unlawful gaming committed by him prior to the commencement of such prosecution; nor shall any witness, giving evidence either before the grand jury or the court in such prosecution, be ever proceeded against for any offense of unlawful gaming committed by him at the time and place indicated in such prosecution; but such witness shall be compelled to testify, and for refusing to answer questions, may, by the court, be fined a sum not exceeding five hundred dollars, and be imprisoned for a term not exceeding six months"; and by the twenty-second section of the same act it is provided that "in a criminal prosecution, other than for perjury or an action on a penal statute, evidence shall not be given against the accused of any statement made by him as a witness upon a legal examination."

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