Jenkins v. State

• Citation: 14 S.E.2d 594
• Decision Date: 30 April 1941
• Docket Number: No. 28915.,28915.
• Parties: JENKINS . v. STATE.
• Court: United States Court of Appeals (Georgia)

14 S.E.2d 594

JENKINS .

v.STATE.

No. 28915.

Court of Appeals of Georgia, Division No. 1.

April 30, 1941.

Syllabus by the Court.

The court erred in sustaining the motion of the State to strike the plea in abatement to the indictment. All subsequent proceedings were nugatory.

Error from Superior Court, Jefferson County; R. N. Hardeman, Judge.

George Jenkins was convicted of seduction, and he brings error.

Judgment reversed.

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.

GARDNER, Judge.

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: "(1) On June 24th, 1940, the said defendant was called before the grand jury of Jefferson County, Georgia, and was compelled to testify before that body concerning the truth of the accusation charged in the warrant upon which he was arrested. (2) Defendant says that he was forced to testify before the 'true bill' was rendered, and that this testimony was taken into consideration by said body before taking such action. (3) Defendant says that his legal and constitutional rights were invaded by his being compelled to testify before said body, and that the indictment rendered after such testimony is invalid." 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, 'is a maxim of the law, founded upon the principles of British freedom, and may be considered as one of our constitutional rights and privileges. It has been encroached upon in arbitrary reigns, and particularly while the Court of Star Chamber was inexistence, of which the process and pleading were the same as in Chancery, but extended even to criminal informations, to which the party accused was obliged to answer on oath. This drew it into the greatest odium, and was the principal cause of its downfall. The Court of Chancery, however, has never compelled a party to criminate himself, and the fate of the Court of Star Chamber has, perhaps, made it still more strict in the observance of this rule of pleading. And it is so fundamental a rule, that Equity, which interferes in almost every other case, to prevent the application of the general law from working injustice, will not interfere against this rule.' 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: "At Common Law, and in Chancery, no person can be compelled to testify against himself. In equity, he is not compelled to answer to any question which has a tendency to criminate him, or expose him to a penalty or forfeiture; or any question which may form a link in the chain of evidence by which crime, penalty or forfeiture is to be established * * * [and] These privileges do not extend to cases under the Statute of Ann, as regards property and securities won at gaming; nor to cases under our Act of 1764, upon the same subjects--those acts, by express enactment, requiring the defendant to answer." 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 Knee-land v. State, supra. The court stated: "Upon a review of the cases cited supra, four of the justices of this court (Lumpkin, P. J, and Fish, Cobb, and Lewis, JJ.) are of the opinion that the decisions therein to the effect above indicated should be overruled, but, as this cannot be done without the concurrence of at least five justices, the doctrine of those cases must stand as good law, binding upon the entire court. For this reason alone, the four justices herein named concur in the judgment."

While we are aware that the cases cited do not deal directly with the question before us as to whether an indictment is in-valid 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: "In the investigation of complaints by the Public Service Commission of violations of the laws against giving or granting rebates, or of underbilling, by common carriers, said Commission is hereby given the power and authority to compel the shipper or consignee, or any officer, agent, or employee of a common carrier, to give evidence touching such complaints. Before any such person shall be compelled to give evidence touching such complaints, the Commission shall make an order that such witness is required by the Commission to testily, and that he is exempt thereafter from indictment or prosecution for any transaction about which he is so compelled to testify. When such order is made the witness shall be compelled to give evidence touching such complaints, and he shall be forever free from indictment...