Johnson County Nat. Bank and Trust Co. v. Grainger

• Decision Date: 17 July 1979
• Docket Number: No. 7810SC626,7810SC626
• Citation: 42 N.C.App. 337,256 S.E.2d 500
• Court: North Carolina Court of Appeals
• Parties: JOHNSON COUNTY NATIONAL BANK AND TRUST COMPANY v. Larry GRAINGER and Jacqueline W. Grainger.

Page 500

256 S.E.2d 500

42 N.C.App. 337

JOHNSON COUNTY NATIONAL BANK AND TRUST COMPANY v. Larry GRAINGER and Jacqueline W. Grainger.

No. 7810SC626.

Court of Appeals of North Carolina.

July 17, 1979.

Hatch, Little, Bunn, Jones, Few & Berry by William P. Few, Raleigh, for plaintiff-appellee.

Purser & Barrett by George R. Barrett, Raleigh, for Larry Grainger, defendant-appellant.

PARKER, Judge.

Appellant contends that the order appealed from infringes upon his privilege against self-incrimination provided by Article I, Sec. 23 of the Constitution of North Carolina and by the Fifth Amendment to the Constitution of the United States, which, since the decision of Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964), is applicable to the States by operation of the Fourteenth Amendment. On this record we find no infringement of the constitutional privilege invoked has been shown. Accordingly, we affirm the trial court's order.

That this is a civil rather than a criminal proceeding is without significance in the determination of the question before us, for the constitutional privilege against self-incrimination "applies alike to civil and criminal proceedings, wherever the answer might tend to subject to criminal responsibility him who gives it." McCarthy v. Arndstein, 266 U.S. 34, 40, 45 S.Ct. 16, 17, 69 L.Ed.2d 158, 161 (1924); Accord, Allred v. Graves, 261 N.C. 31, 134 S.E.2d 186 (1964). Moreover, the protection afforded by the privilege against self-incrimination "does not merely encompass evidence which may lead to criminal conviction, but includes information which would furnish a link in the chain of evidence that could lead to prosecution, as well as evidence which an individual reasonably believes could be used against him in a criminal prosecution." Maness v. Meyers, 419 U.S. 449, 461, 95 S.Ct. 584, 592, 42 L.Ed.2d 574, 585 (1975); Accord Smith v. Smith, 116 N.C. 386, 21 S.E. 196 (1895). However, "(i)t is well established that the privilege protects against real dangers, not remote and speculative possibilities," Zicarelli v. Investigation Commission, 406 U.S. 472, 478, 92 S.Ct. 1670, 1675, 32 L.Ed.2d 234, 240 (1972), and a witness may not arbitrarily refuse to testify without existence in fact of a real danger, it being for the court to determine whether that real danger exists.

The witness is not exonerated from answering merely because he declares that in so doing he would incriminate himself his say-so does not of itself establish the hazard of incrimination. It is for the court to say whether his silence is justified, Rogers v. United States, 340 U.S. 367, 71 S.Ct. 438, 95 L.Ed. 344, 19 A.L.R.2d 378 (1951), and to require him to answer if "it clearly appears to the court that he is mistaken." Temple v. Commonwealth, 75 Va. 892, 899 (1881). However, if the witness, upon interposing his claim were required to prove the hazard in the sense in which a claim is usually required to be established in court, he would be compelled to surrender the very protection which the privilege is designed to guarantee. To sustain the privilege, it need only be evident from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result. The trial judge in appraising the claim "must be governed as much by his personal perception of the peculiarities of the case as by the facts actually in evidence." See Taft, J., in Ex parte Irvine, 74 F. 954, 960 (C.C.S.D. Ohio 1896).

Hoffman v. United States 341 U.S. 479, 486-87, 71 S.Ct. 814, 818, 95 L.Ed. 1118, 1124 (1951); See Annot., 95 L.Ed. 1126 (1951); See also 8 Wigmore, Evidence (McNaughton rev. 1961) § 2271; 1 Stansbury's N.C. Evidence (Brandis Revision), § 57; 81 Am.Jur.2d, Witnesses, § 52.

The difficulties inherent in attempting to reconcile the potential conflict between the principle that every citizen, when properly called as a witness, owes the duty to testify truthfully to all relevant matters which are the subject of a judicial inquiry and the principle that no one may be compelled to testify to anything which might tend to incriminate him, were long ago recognized by Chief Justice Marshall at the trial of U. S. v. Burr, 25 F.Cas. 38, 39-41 (C.C.D.Va.1807) and by Chief Justice Smith of our own Supreme Court in LaFontaine v. Southern Underwriters, 83 N.C. 132 (1880). Granted that the constitutional privilege against self-incrimination must take precedence and that the privilege must be sustained whenever it is clear from the nature of the question or from the context in which it is asked that a truthful answer might tend to incriminate the witness, the problem remains as to how the court, which cannot know all that the witness knows about the matter, is to determine whether the witness is entitled to privilege in those cases where it is not clear, either from the question itself or from the context in which it is asked, that a truthful answer might tend to incriminate the witness. No one has stated the problem better than Judge Learned Hand in United States v. Weisman, 111 F.2d 260 (2nd Cir. 1940) when he said (p. 262):

Obviously a witness may...