Frain v. Applegate, Judge

• Decision Date: 16 June 1931
• Citation: 239 Ky. 605
• Parties: Frain v. Applegate, Judge.
• Court: United States State Supreme Court — District of Kentucky

239 Ky. 605

Frain v. Applegate, Judge.

Court of Appeals of Kentucky.

Decided June 16, 1931.

1. Courts. — Court of Appeals exercises original jurisdiction only when inferior tribunal proceeded against is acting without jurisdiction or is erroneously exercising jurisdiction and where irreparable injury will follow without adequate remedy (Constitution, sec. 110).

2. Witnesses. — Constitutional protection against self-incrimination extends to investigations before grand juries (Constitution, sec. 11).

3. Witnesses. — Court from question itself determines whether witness may refuse to answer on ground of self-incrimination (Criminal Code of Practice, sec. 108; Constitution, sec. 11).

4. Witnesses. — Order requiring witness subpoenaed before grand jury to answer whether he saw shooting and, if so, to name person firing shot, after witness declined to answer on ground of self-incrimination, held proper (Criminal Code of Practice, sec. 108; Constitution, sec. 11).

5. Witnesses. — Possibility that examination of witness will be pursued to extent requiring self-incrimination will not justify refusal to answer question.

Original Action in Court of Appeals.

STEPHENS L. BLAKELY for plaintiff.

J.W. CAMMACK, Attorney General, and LESLIE T. APPLEGATE for respondent.

OPINION OF THE COURT BY CHIEF JUSTICE THOMAS

Overruling motion for restraining order.

The respondent, Leslie T. Applegate, is one of the circuit judges of the Sixteenth judicial district in this commonwealth. On the afternoon of March 18, 1931, Alfred Cunningham was shot and killed on East Eighth street, in Covington, Ky., near the front of the residence of William Bannon. The grand jury of the criminal branch of the circuit court in that county, and over which respondent presides, was then in session, and it commenced the investigation of the commission of that crime, with the view of indicting the perpetrator. It subpoenaed as a witness before it the plaintiff herein, John Frain, who after being sworn was asked by the commonwealth's attorney these two questions:

(1) "Did you see a man shoot Alfred Cunningham in front of or near the residence of William Bannon on East Eighth Street in Covington, Kentucky, on the afternoon of March 18, 1931?" (2) "If you answer in the affirmative, state to the Grand Jury who it was that shot Alfred Cunningham at that time and place?"

Plaintiff declined to answer either of them, because as insisted by him he might thereby incriminate himself, and he was properly taken before the respondent as the presiding judge of the court, pursuant to the provisions of section 108 of the Criminal Code of Practice, for the purpose of determining whether he should be required to answer the questions. They were repeated to him in the presence of respondent, and plaintiff again declined to answer either of them; his refusal being based upon the same ground. Respondent thereupon concluded that neither of the questions propounded to plaintiff was so framed as to elicit any incriminating facts against him, nor would any answer to either of them, if made in strict response to the language in which they were framed uncover any such incriminating information, and he required plaintiff to answer the questions upon penalty of his being confined in jail if he persisted in declining, and to remain there until he did answer. Following that, and under a stipulation for matters to remain in statu quo until it could be done, plaintiff filed this original action in this court against respondent, accompanied with a motion for appropriate restraining process from punishing plaintiff for the alleged contempt in refusing to answer the questions, or either of them, upon the ground that respondent erroneously adjudged that the answers to the questions propounded were not such as to deprive plaintiff of his guaranteed exemption in section 11 of our Constitution, saying, "He [defendant] can not be compelled to give evidence against himself," and because of which respondent was proceeding or about to proceed erroneously within his jurisdiction, followed by the requisite consequences that would give this court jurisdiction upon original application to it to grant the prohibitive relief sought. The response to the petition sets out the facts and then denied that respondent was proceeding erroneously in requiring plaintiff to answer the questions propounded to him by the grand jury and prayed that the petition be dismissed, and the motion overruled.

In the very recent case of Osborn v. Wolfford, Judge, 239 Ky. 470, 39 S.W. (2d) 672 (decided June 5, 1931), we reviewed and approved the limitations of our original jurisdiction under section 110 of our Constitution as declared by prior cases, some of which are expressly referred to in that opinion, and the others will be found by consulting those so referred to. Those limitations are: That this court will entertain jurisdiction, on original application to it under the section of the Constitution referred to, only when the inferior tribunal proceeded against is acting, (1) without jurisdiction, or (2) when it is acting within its jurisdiction, but is erroneously doing so, and (a) great and irreparable injury would follow therefrom, and (b) without any adequate remedy open to the applicant by which he might obtain relief therefrom. In some of our cases we have defined what would be the necessary "great and irreparable" injury within requisite (a) supra, and what...