Jenkins v. State
Decision Date | 30 April 1941 |
Docket Number | 28915. |
Citation | 14 S.E.2d 594,65 Ga.App. 16 |
Parties | JENKINS v. STATE. |
Court | Georgia Court of Appeals |
M C. Barwick and M. Cook Barwick, both of Louisville, for plaintiff in error.
O L. Bryant and J. Roy McCracken, both of Louisville, and W. H Lanier, Sol. Gen., of Metter, for defendant in error.
The defendant was indicted for the offense of seduction. When called upon to plead to the indictment he filed a plea in abatement which, on motion of the State, was stricken as being insufficient in its allegations of fact, as a matter of law, to authorize the setting aside of indictment. Exceptions pendente lite were filed. A plea of not guilty was entered and the defendant was convicted. His motion for new trial was overruled. To this judgment and to the ruling complained of in the exceptions pendente lite he excepted.
The plea in abatement, in its material allegations, set forth The court struck the plea as follows: "Upon a motion to strike by the solicitor-general, this plea in abatement is stricken." The question for decision is, Did the methods used, and for the purposes alleged in the plea in abatement, invalidate the indictment even though there were other competent witnesses who were sworn before the grand jury on the investigation? This question has never before been presented to the courts of review of this State, but it has been decided both affirmatively and negatively in many other jurisdictions, as we will hereinafter point out.
The question grows out of a constitutional provision of our State. Our provision is to the same effect and import as those in the United States Constitution, and in most, if not all, of those of the several States, and has given rise to many learned and conflicting decisions in the several jurisdictions. Our Constitution provides, Code, § 2-106, "No person shall be compelled to give testimony tending in any manner to criminate himself." The right thus guaranteed was first presented for consideration to our Supreme Court in the early case of Marshall v. Riley, 7 Ga. 367, 370. The court said: "To compel the defendant *** to testify that the note which was the subject matter of the action, was given to him as a fee for services
rendered in curing a cancer upon the wife of Riley, would be to furnish all the testimony needed to convict him under the Statute; the presumption being, according to its provisions, that he had no license. The maxim of the Common Law, nemo tenetur seipsum prodere, that no man is bound to accuse himself of any crime, or to furnish any evidence to convict himself of any crime, is founded in great principles of constitutional right, and was not only settled in early times in England, but was brought by our ancestors to America, as a part of their birthright. 'This,' says Mr. Cooper, Eq.Pl. 203. It was the great boast of Lord Hardwick, says Judge Story, that the general rule, established with great justice and tenderness in the law of England, is fully recognized and acted on in Courts of Equity, that no person shall be obliged to discover what may tend to subject him to a penalty or punishment, or to that which is in the nature of a penalty or punishment. Harrison vs. Southcote, 2 Ves. 394. In Williams vs. Hannington (3 Bro.C.C. 35), the Lord Chancellor held, not only that answers would not be required, which would subject a party to a penalty or forfeiture or punishment for crime, or which would tend thereto; but that the defendant need not plead or demur to the bill, but upon exceptions to the answer he might insist he was not liable. See, also, as to the right of the party to object to discovery in a matter tending to criminate him, or expose him to penalties, &c. Glynn vs. Houston, 1 Keen, 329. United States v. Twenty-eight Packages [Fed.Cas. 16561], Gilp. 306. Bishop of London vs. Fytche, 1 Bro.C.C. 97, and note. Wigram on Discovery, Prop. 2, 1 Amer.Ed. 82, et seq. 2 Stor.Eq.Jur. ch. 42, § 1494, and note, and numerous cases there cited."
Again, see Higdon v. Heard, 14 Ga. 255. That case was based upon the act of 1764, concerning recovery of gaming stakes for the descendents of the loser. We will quote only from the headnotes: In Kneeland v. State, 62 Ga. 395, 396, 397, a contempt citation brought into question whether a witness could be compelled to testify in a gaming case against another where his evidence would criminate him, also the validity of the Code section, Cobb 815, 816 (Code, § 26-6407). Our Supreme Court held in that case that such a witness could be compelled to testify for the reason that the Code section also provided that such testimony could not be used against the witness except on a charge of perjury.
In Counselman v. Hitchcock, 142 U.S. 547, 12 S.Ct. 195, 35 L.Ed. 1110, the court said: "Under the 5th Amendment to the Constitution of the United States, which declares that 'no person *** shall be compelled in any criminal case to be a witness against himself,' where a person is under examination before a grand jury, in an investigation into certain alleged violations of the interstate commerce act of February 4, 1887, 24 Stat. 379, and the amendatory act of March 2, 1889, 25 Stat. 855, he is not obliged to answer questions where he states that his answers might tend to criminate him, although § 860 of the Revised Statutes provides that no evidence given by him shall be in any manner used against him, in any court of the United States, in any criminal proceeding." See annotation under Higdon v. Heard, supra. In Wheatley v. State, 114 Ga. 175, 39 S.E. 877, another contempt citation involving the same question of compelling a witness to give evidence against another in a gaming case, the Supreme Court was asked to review and overrule Higdon v. Heard and Kneeland v. State, supra. The court stated:
While we are aware that the cases cited do not deal directly with the question before us as to whether an indictment is invalid because the defendant himself is called before the grand jury and forced to give evidence against himself, they, however, afford a direct approach to the question guided by high authority. Let us turn for the moment and examine our legislative enactments and see whether they tend to illuminate the issue. Code, § 93-506, provides: Code, § 93-507, provides: "When...
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