In re Harry Dewar

Decision Date14 January 1930
PartiesIN RE HARRY DEWAR
CourtVermont Supreme Court

November Term, 1929.

Habeas corpus---Use in Testing Jurisdiction of Court---Status of Order of Commitment under Unconstitutional Statue---Application of Declaration of Rights, Article 10---Who Determines Whether Witness May Refuse To Answer Question on Ground That Answer Would Tend To Criminate Him---Acts 1921, No. 203, Requiring Disclosure from Person Convicted of Intoxication as to Person from Whom Liquor Was Purchased, Unconstitutional.

1. While writ of habeas corpus is not in nature of and cannot be used as a substitute for a bill of exceptions or writ of error, it affords an appropriate means of attacking jurisdiction of court, not only over person or subject-matter, but its jurisdiction to make very order or render particular judgment called in question.

2. If statute under which petitioner in habeas corpus proceedings has been committed was in conflict with constitutional provisions, order of commitment would not be merely erroneous, but illegal and void, and it would be duty of Supreme Court on petition to it for such writ to set prisoner free, though thereby it exercised a jurisdiction more or less appellate in character.

3. Provision in Constitution (Declaration of Rights, Art. 10) that a person accused of crime cannot be compelled to give evidence against himself should be applied in a broad and liberal spirit to end that individual shall enjoy that complete immunity therein contemplated.

4. Whether witness may refuse to answer question on ground that to do so would tend to criminate him is not left exclusively for witness to determine, but ultimate decision of witness' right to refuse to testify is for court question being one of law for court under established rules where no issue of fact is involved.

5. While witness is not to be allowed to defraud court in refusing to answer question on ground that it would tend to criminate him, by asserting a privilege that he knows does not exist, where situation is such that court should see that any answer reasonably to be expected may definitely tend to expose his criminality, there is no room for inquiring whether privilege is claimed in good faith; and when witness places himself upon his privilege, he will be protected unless court can see from circumstances of case that witness is in error, or that it is a mere pretext of witness to avoid answering, and that his answer cannot, from nature of things criminate him.

6. Acts 1921, No. 203, specially requiring a disclosure from all persons convicted of intoxication of person from whom liquor was obtained, held unconstitutional and void, as conflicting with constitutional provision (Declaration of Rights, Art 10) that a person accused of crime cannot be compelled to give evidence against himself, in view of terms of Acts 1921, No. 204, providing penalty for making, importing, transporting or possessing intoxicating liquor.

PETITION for a writ of habeas corpus brought before Mr. Justice Leighton P. Slack, and by him adjourned to the Supreme Court, Washington County, in accordance with the provisions of G. L. 2221. Petitioner had been convicted of intoxication before a justice of the peace. Thereupon, he was duly sworn, and directed to disclose the person of whom he obtained the liquor which caused his intoxication, as required by No. 203, Acts of 1921; and, having refused to divulge such information on the ground that it would tend to criminate him, he was adjudged to be in contempt and committed to jail, to test the legality of which such habeas corpus proceedings were instituted. Petitioner discharged.

Gelsie Monti for the petitioner.

Present: WATSON, C. J., POWERS, SLACK, MOULTON, and WILLCOX, JJ.

OPINION
POWERS

The petitioner was convicted of intoxication before a justice of the peace. Thereupon, he was duly sworn and required to disclose the person of whom he obtained the liquor which produced such intoxication. He refused to do so on the ground that it would tend to criminate him. He was adjudged to be in contempt, and was committed to jail. He then brought these habeas corpus proceedings, which were duly adjourned into this Court agreeably to the provisions of G. L. 2221. The importance of the question here submitted for our determination is obvious. On the one hand, a nullification of No. 203, Acts of 1921, which specifically requires a disclosure from all persons convicted of intoxication, will seriously embarrass the enforcement of the liquor law; on the other hand, a denial of the immunity from self-incrimination with which every person is clothed by the Constitution, is not to be tolerated. If the act referred to results in such denial, it is void, and there is nothing for this Court to do but so declare and thus give vitality and effect to the fundamental law, however much the administration of the criminal laws may be thereby impeded.

The validity of the petitioner's commitment depends upon the authority of the court which ordered it; and having resorted to habeas corpus proceedings, the petitioner only challenges the jurisdiction of that court to send him to jail. For, while the writ here asked for is not in the nature of, nor can it be used as a substitute for, a bill of exceptions or writ of error, In re Hook, 95 Vt. 497, 503, 115 A. 730, 19 A.L.R. 610, it affords an appropriate means of attacking the jurisdiction of a court, not only its jurisdiction over the person or the subject-matter, but its jurisdiction to make the very order or render the particular judgment called in question. So if it turns out that the statute under which the justice of the peace ordered the petitioner to disclose is in conflict with constitutional provisions, he was wholly without jurisdiction to demand the testimony sought, or to make the order of commitment. In that case, the order was not merely erroneous, it was illegal and void, and could not be the basis of a lawful imprisonment; and it would be the duty of this Court, in these proceedings, to set the prisoner free, though we thereby exercise a jurisdiction more or less appellate in character. In re Hook, supra; In re Dawley, 99 Vt. 306, 314, 131 A. 847; Ex parte Siebold, 100 U.S. 371, 25 L.Ed. 717.

The provision invoked for the protection of the prisoner is found in Article 10 of our Bill of Rights: "Nor can he be compelled to give evidence against himself." This simple declaration of ten words embodies a safeguard of civil liberty as sacred and inviolable as any of the fundamental guaranties for the protection of personal rights. People v. Forbes, 143 N.Y. 219, 38 N.E. 303, 305. Similar provisions are to be found in nearly every state Constitution and in the Constitution of the United States. All agree that they are of first importance and should be applied in a broad and liberal spirit to the end that the individual shall enjoy that complete immunity therein contemplated. People v. Newmark, 312 Ill. 625, 144 N.E. 338, 340; Ward v. State, 27 Okla. Crim. 362, 228 P. 498; People v. Spain, 307 Ill. 283, 138 N.E. 614, 617; In re Beer, 17 N.D. 184, 115 N.W. 672, 17 Ann. Cas. 126, 127; Arndstein v. McCarthy, 254 U.S. 71, 65 L.Ed. 138, 142, 41 S.Ct. 26; People v. Forbes, 143 N.Y. 219, 38 N.E. 303, 305; Ex Parte Senior, 37 Fla. 1, 19 So. 652, 32 L.R.A. 133, 135; People v. Reardon, 124 A.D. 818, 109 N.Y.S. 504, 508; Counselman v. Hitchcock, 142 U.S. 547, 35 L.Ed. 1110.

Whatever the rule formerly may have been in this country or elsewhere, it is now fully established that it is not left to the witness, exclusively, to say when he is entitled to the privilege of silence. The right of the state or of individuals to have the benefit of the testimony of every person having relevant knowledge is not to be disregarded to that extent, nor are the enforcement and administration of the laws to be so unduly embarrassed. The ultimate decision of the witness' right to refuse to testify, is for the court. State v. Wood, 99 Vt. 490, 492, 134 A. 697, 48 A.L.R. 985. But where, as here, no issue of fact is involved, the question which the court is required to pass upon is one of law, the decision of which must accord with established rules.

The law governing such cases was laid down by Chief Justice Marshall in the trial of Aaron Burr, 1 Burr's Trial, 244, F. Cas. No. 14692e, wherein the great expounder used the following language: "When a question is propounded (a question which the witness declines to answer upon the ground that it may tend to criminate him), it belongs to the court to consider and to decide whether any direct answer to it can implicate the witness. If this be decided in the negative, then he may answer it without violating the privilege which is secured to him by law. If a direct answer to it may criminate himself, then he must be the sole judge what his answer would be. The court cannot participate with him in this judgment, because they cannot decide on the effect of his answer without knowing what it would be; and a disclosure of that fact to the judges would strip him of the privilege which the law allows, and which he claims. It follows necessarily, then, from this statement of things, that, if the question be of such a description that an answer may or may not criminate the witness, according to the purport of that answer, it must rest with himself, who alone can tell what it would be, to answer the question or not. If, in such a case, he say upon his oath that his answer would criminate himself, the court can demand no other testimony of the fact." This doctrine was adhered to in Counselman v. Hitchcock, 142 U.S. 547, 35 L.Ed. 1110, 1115, 12 S.Ct. 195, and Mason v. United States, 244 U.S. 362, 61 L.Ed. 1198, 1199, 37 S.Ct. 621.

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4 cases
  • State v. Bert Stacy
    • United States
    • Vermont Supreme Court
    • May 4, 1932
    ...175 U.S. 172, 174, 44 L.Ed. 119, 120, 20 S.Ct. 77; Spies v. Illinois, 123 U.S. 131, 166, 31 L.Ed. 80, 86, 8 S.Ct. 22; In re Dewar, 102 Vt. 340, 346, 148 A. 489; State v. Felch, 92 Vt. 477, 483, 105 A. In re Consolidated Rendering Co., 80 Vt. 55, 79, 66 A. 790, 11 Ann. Cas. 1069; State v. Gi......
  • In re Edward J. Squires
    • United States
    • Vermont Supreme Court
    • October 2, 1945
    ... ... In re Hook, 95 ... Vt. 497, 503, 115 A. 730, 19 A.L.R. 610; In re ... Dawley, 99 Vt. 306, 314, 131 A. 847; In re ... Dewar, 102 Vt. 340, 344, 148 A. 489, 490. In the last ... named case the petitioner had refused to disclose the source ... from which he had obtained ... ...
  • In re Ernest B. Tomassi
    • United States
    • Vermont Supreme Court
    • October 13, 1931
    ... ... privilege is primarily for the court before which the ... testimony is being given, but it is for re-examination by ... this Court. In re Dewar, 102 Vt. 340, 346, 148 A ... 489. It is [104 Vt. 37] frequently a difficult and delicate ... question to decide--especially in liquor cases. Like ... ...
  • In re Fred Church
    • United States
    • Vermont Supreme Court
    • January 14, 1930
    ... ...           ...          POWERS ...           [102 ... Vt. 492] This case is like In re Dewar, ante 102 Vt ... 340, and for the reasons stated in that ... ...
1 books & journal articles
  • Ruminations
    • United States
    • Vermont Bar Association Vermont Bar Journal No. 43-4, December 2017
    • Invalid date
    ...to bounce off the walls of the courtroom and eventually dissipate. [20] State v. Brunelle, 148 Vt. 347, 357 (1987). [21] In re Dewar, 102 Vt. 340 (1930). [22] In re Vitale, 151 Vt. 580, 585-586 (1989). [23] Green v. Woodbury, 48 Vt. 5, 6 (1875). [24] https://www.sec.state.vt.us/media/48954/......

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