Kendrick v. Commonwealth

• Decision Date: 27 March 1884
• Citation: 78 Va. 490
• Parties: KENDRICK v. THE COMMONWEALTH.
• Court: Virginia Supreme Court

78 Va. 490

KENDRICK v. THE COMMONWEALTH.

Supreme Court of Appeals of Virginia.

March 27, 1884

Error to judgment of hustings court of city of Richmond, rendered on the 13th February, 1884, sentencing William Kendrick to pay a fine of fifty dollars, and to be confined in jail for twenty days, for a contempt of court, in refusing to answer a certain question propounded to him by the grand jury, said Kendrick having been sworn in court and sent to the grand jury to give evidence on a charge against Thomas Lyon, who had been remanded to said court for indictment and trial for keeping and exhibiting the game of faro. To this judgment Kendrick obtained a writ of error and supersedeas.

S M. and C. L. Page, for plaintiff in error.

Attorney-General F. S. Blair, for the Commonwealth.

OPINION

FAUNTLEROY J.

The bill of exceptions signed by the hustings court certifies that William Kendrick, then being before the grand jury to answer questions and give evidence on a bill of indictment which had been preferred and sent to the said grand jury in the said hustings court against Thomas Lyon, for unlawfully keeping and maintaining within the jurisdiction of the said court a certain gaming-table, commonly called a faro bank and for then and there contributing money to allure other persons to bet at said game, he, the said William Kendrick, was asked by the grand jury the following question:

" Tell all you know about any person keeping or exhibiting, or being a partner, or concerned in interest in the keeping or exhibiting of any faro bank, or table A B C, or E O table, keno-table, or any other table of a like kind, or of any other unlawful gaming; whether the table or game be played with cards, dice or otherwise, on the 11th day of August, 1883, or at any time within twelve months previous thereto, at the house number 307, on Seventh between Broad and Marshall streets." And the said William Kendrick, to the question so put to him by the said grand jury, for answer thereto said as follows: " I cannot answer that question, because the answer to it would tend to criminate me, and would disgrace me."

And the said William Kendrick, thus declining and refusing to answer the said question as put by the grand jury, he, the said William Kendrick, was then and there reported to the honorable court by the grand jury; whereupon the judge of the said court read over to the said William Kendrick sections 20 and 22 of chapter 10 of the Criminal Code of Virginia, at the same time informing the said William Kendrick that, in the opinion of the court, he, the said William Kendrick, was fully protected; but the said William Kendrick, for the same reasons previously given, declined to answer the question aforesaid as propounded to him by the grand jury. Whereupon, for his said declining and refusing to answer the said question so asked him by the grand jury, as required by the statute, section 20, chapter 10, of the Criminal Code, the said William Kendrick was, by the said hustings court, under the said 20th section, fined fifty dollars, and sentenced to confinement in the jail of the said city for a term of twenty days. To this judgment of the said hustings court, a writ of error was awarded by one of the judges of this court.

The question we have to decide is, whether upon the facts, as set out in the bill of exceptions the hustings court was justified in requiring the witness to answer the question as asked; and, upon his failure to do so, to fine and imprison him.

The tenth section of Article I of the constitution of Virginia ordains: " That in all capital or criminal prosecutions a man hath a right to demand the cause and nature of his accusation; to be confronted with the accusers and witnesses; to call for evidence in his favor, and to a speedy trial by an impartial jury of his vicinage, without whose unanimous consent he cannot be found guilty; nor can he be compelled to give evidence against himself; that no man be deprived of his liberty except by the law of the land or the judgment of his peers." This section of the Bill of Rights of Virginia incorporated in her organic law proclaims and renders inviolable " a great, practical, individual right, that no man should, anywhere, before any tribunal, in any proceedings, be compelled to give evidence tending to criminate himself, either in that or any other proceedings" ; and it is a precious, a most inestimable privilege and power of self-protection by the citizen against governmental oppressions, and especially such as may be exercised under the pretence and by the abuse of judicial power; and it ought to be construed with the utmost liberality consistent with the due execution of the laws and the safety of society. But while it is a settled maxim of law that no man is bound to criminate himself, it is also a rule of law and a necessity of public justice, that every person is compellable to bear testimony in the administration of the laws by the duly constituted courts of the country.

Chief-Justice Marshall said, in the famous Burr trial: " When two principles come in conflict with each other, the court must give them BOTH a reasonable construction, so as to preserve them both to a reasonable extent. The principle which entitles the government to the testimony of every citizen, and the principle by which every witness is privileged not to accuse himself, can neither of them be entirely disregarded. When a question is propounded, 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 judge would strip him of that privilege which the law allows him, 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 to it 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. It is the province of the court to judge whether any direct answer to the question which may be proposed will furnish evidence against the witness. If such answer may disclose a fact which forms a necessary and essential link in the chain of testimony which would be sufficient to convict him of any crime, he is not bound to answer it so as to furnish matter for that conviction. In such a case the witness must himself judge what his answer will be; and if he say on oath, that he cannot answer without accusing himself, he cannot be compelled to answer."

In the case of the People v. Mather, 4 Wend. 229, Marcy J., said: " Where a witness claims to be excused from answering because his answer will have a tendency to implicate him in a crime or misdemeanor, or will expose him to a penalty or forfeiture, then the court is to determine whether the answer he may give to the question can criminate him, directly or indirectly, by furnishing direct evidence of his guilt, or by establishing one of many facts which, together, may constitute a chain of testimony sufficient to warrant his conviction, but which one fact, of itself, could not produce such result; and...