In re Biggers

• Decision Date: 20 October 1909
• Citation: 104 P. 1083,24 Okla. 842,1909 OK 250
• Parties: In re BIGGERS.
• Court: Oklahoma Supreme Court

104 P. 1083

24 Okla. 842, 1909 OK 250

In re BIGGERS.

Supreme Court of Oklahoma

October 20, 1909

Syllabus by the Court.

The provision of section 27, art. 2, Const., granting immunity from being "prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter, or thing concerning which he may so testify, or produce evidence," relates only to criminal action, and not to civil proceedings, in which such "transaction, matter or thing" may be involved.

An action by virtue of sections 232-237 (sections 10-15, c. 7) Wilson's Rev. & Ann. St. 1903, is a civil proceeding.

Original proceedings for the disbarment of Virgil R. Biggers. Respondent disbarred.

Tom D McKeown and W. I. Gilbert, for relator. Stuart & Gordon, for respondent.

WILLIAMS J.

The question for determination in this case is, the respondent having been legally called upon to give testimony or produce evidence that tended to establish his guilt of the offense of having received a bribe as county attorney of Pottawatomie county, causing a willful violation of his duties as such attorney, whether or not section 27, art. 2, Const. Okl providing that "no person shall be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter, or thing concerning which he may so testify, or produce evidence," grants such immunity as will preclude this court from disbarring respondent on account of such transaction, although such dereliction is established otherwise than through the evidence or admissions of said respondent. Said section 27, art. 2, supra, was incorporated in the Constitution of this state in view of the fifth amendment to the federal Constitution, which provides that "no person shall be compelled in any criminal case to be a witness against himself." It would not be amiss to look in the history of such statutes passed by the Congress of the United States.

Act Cong. February 25, 1868, c. 13, 15 Stat. 37, provides as follows: "That no answer or other pleading of any party, and no discovery, or evidence obtained by means of any judicial proceeding from any party or witness in this or any foreign country, shall be given in evidence, or in any manner used against such party or witness, or his property or estate, in any court of the United States, or in any proceeding by or before any officer of the United States, in respect to any crime, or for the enforcement of any penalty or forfeiture by reason of any act or omission of such party or witness." Section 860 of the Revised Statutes of the United States (U. S. Comp. St. 1901, p. 661), which is a substantial re-enactment of said provision of February 25, 1868, provides as follows: "No pleading of a party, nor any discovery or evidence obtained from a party or witness by means of a judicial proceeding in this or any foreign country, shall be given in evidence, or in any manner used against him or his property or estate, in any court of the United States, in any criminal proceeding, or for the enforcement of any penalty or forfeiture." Section 12 of an act to regulate commerce, approved February 4, 1887 (Act Feb. 4, 1887, c. 104, 24 Stat. 383 [U. S. Comp. St. 1901, p. 3162]), also provides for the production of papers and the attendance and testimony of witnesses, with the stipulation that the claim that such testimony or evidence may tend to incriminate the person giving such evidence shall not excuse such witness from testifying; but such evidence or testimony shall not be used against such person on trial in a criminal proceeding. Such provision is reincorporated in section 3 of an act approved March 2, 1889 (Act March 2, 1889, c. 382, 25 Stat. 858).

On January 11, 1892, the Supreme Court of the United States, in the case of Counselman v. Hitchcock, 142 U.S. 547 12 S.Ct. 195, 35 L.Ed. 1110, said: "It is quite clear that legislation cannot abridge a constitutional privilege, and that it cannot replace or supply one, at least unless it is so broad as to have the same extent in scope and effect. It is to be noted of section 860 of the Revised Statutes that it does not undertake to compel self-criminating evidence from a party or a witness. In several of the state statutes above referred to the testimony of the party or witness is made compulsory, and in some either all possibility of a future prosecution of the party or witness is distinctly taken away, or he can plead in bar or abatement the fact that he was compelled to testify. We are clearly of opinion that no statute which leaves the party or witness subject to prosecution after he answers the criminating questions put to him can have the effect of supplanting the privilege conferred by the Constitution of the United States. Section 860 of the Revised Statutes does not supply a complete protection from all the perils against which the constitutional prohibition was designed to guard, and is not a full substitute for that prohibition. In view of the constitutional provision, a statutory enactment, to be valid, must afford absolute immunity against future prosecution for the offense to which the question relates." After the decision in the Hitchcock Case, Congress, on February 11, 1893, passed an act entitled "An act in relation to testimony before the Interstate Commerce Commission, and in cases or proceedings under or connected with an act entitled 'An act to regulate commerce,' approved February 4th, 1887, and amendments thereto." Act Feb. 11, 1893, c. 83, 27 Stat. 443 (U. S. Comp. St. 1901, p. 3173). In that act it is provided: "That no person shall be excused from attending and testifying or from producing books, papers, tariffs, contracts, agreements and documents before the Interstate Commerce Commission, or in obedience to the subp na of the commission, whether such subp na be signed or issued by one or more commissioners, or in any cause or proceeding, criminal or otherwise, based upon or growing out of any alleged violation of the act of Congress, entitled, 'An act to regulate commerce,' approved February fourth, eighteen hundred and eighty-seven, or of any amendment thereof on the ground or for the reason that the testimony or evidence, documentary or otherwise, required of him, may tend to criminate him or subject him to a penalty or forfeiture. But no person shall be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter or thing, concerning which he may testify, or produce evidence, documentary or otherwise, before said commission, or in obedience to its subp na, or the subp na of either of them, or in any such case or proceeding. Provided, That no person so testifying shall be exempt from prosecution and punishment for perjury committed in so testifying." This act is practically the same as the section of the Constitution now under consideration, and is supposed to have been passed in view of the decision of the Supreme Court of the United States in Counselman v. Hitchcock, supra. In the case of Brown v. Walker, ...