Leavitt, Application of
| Decision Date | 19 October 1959 |
| Docket Number | Cr. 6791 |
| Citation | 345 P.2d 75,174 Cal.App.2d 535 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Application of Ralph G. LEAVITT, for a Writ of Habeas Corpus. |
Brock, Fleishman & Rykoff, Hollywood, for petitioner.
Harold W. Kennedy, County Counsel, Wm. E. Lamoreaux, Asst. County Counsel, Edward A. Nugent, Deputy County Counsel, Los Angeles, for respondent Sheriff.
McGrew Willis, Beverly Hills, for real party in interest.
Petition for writ of habeas corpus.
The petitioner is the defendant in a divorce action. He was ordered to pay alimony. He was in default and an execution was issued and was returned unsatisfied. Plaintiff-wife sought to enforce the order by supplementary proceedings. An order was issued requiring the defendant to appear for a judgment-debtor's examination on July 14, 1959.
An order to show cause in re contempt, previously issued, had been dismissed. A second one was issued and served upon the defendant on July 14, 1959, at the time that he appeared in court. The order to show cause in re contempt was set for hearing on August 19, 1959.
After some delay the judgment-debtor proceedings came on for hearing on July 16, 1959. The defendant was sworn and took the stand. The examination generally pertained to his financial status and the source and extent of his income.
The questions asked, which are material here, are as follows:
Counsel for the defendant interposed an objection to the first question and advised the witness not to answer questions pertaining to the possession of funds. The witness, thereafter, refused to answer each of the questions hereinabove listed and stated that his refusal was based upon the ground that the answers might tend to incriminate him. In each instance the court instructed the witness to answer the question. No answers were given by the witness. The court found him in contempt for refusal to answer.
The hearing was again continued and on July 20, 1959, the court committed the defendant to the custody of the sheriff and ordered him confined in the county jail until such time as he consented to answer the questions propounded.
This petition for writ of habeas corpus followed forthwith.
The constitution gives to every witness the privilege against self-incrimination. This privilege applies in civil proceedings (Fross v. Wotton, 3 Cal.2d 384, 44 P.2d 350). It is available in judgment-debtor proceedings (Coleman v. Galvin, 78 Cal.App.2d 313, 177 P.2d 606 [dictum]).
The question raised is whether or not the answers sought could tend to incriminate the defendant.
A witness cannot arbitrarily refuse to testify. There must exist in fact a real danger that the answer would have a tendency to be incriminating. Insofar as possible the trial court must determine if such real danger exists. If the witness swears under oath that the answer might tend to incriminate him, he should be allowed great latitude and the court should sustain his claim of privilege unless it is clear that the answer could have no tendency to incriminate. In re Berman, 105 Cal.App. 37, 287 P. 125; Coleman v. Galvin, supra.
It must be borne in mind that the order to show cause in re contempt had been issued and served upon the defendant, and was set for hearing approximately three weeks after the examination in the judgment-debtor proceedings.
Contempt of court has long been recognized as a specific criminal offense. A party charged with contempt cannot be compelled to testify against himself in such proceedings. Ex parte Gould, 99 Cal. 360, 33 P. 1112, 21 L.R.A. 751.
The ability of the defendant to pay the alimony as ordered by the court is one essential fact that would have to be proved in the contempt proceedings. Bailey v. Superior Court, 215 Cal. 548, 11 P.2d 865 and In re Michelena, 150 Cal.App.2d 377, 309 P.2d 861. The answers pertaining to the income and financial status of the defendant would be relevant on this issue and they would be admissible in the contempt proceedings. Code Civ.Proc. § 1870, subd. 2.
At the time that counsel for the defendant interposed his objection, and advised the defendant not to answer the first question hereinabove mentioned, he informed the trial court that any answers pertaining to the possession of funds by the defendant would be a possible incriminating factor in the contempt proceedings which were pending. Not only did the court have the witness' sworn statement that the answers...
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