Malloy v. Hogan

• Decision Date: 03 January 1963
• Citation: 187 A.2d 744,150 Conn. 220
• Court: Connecticut Supreme Court
• Parties: William MALLOY v. Patrick J. HOGAN, Sheriff of the County of Hartford. Supreme Court of Errors of Connecticut

Page 744

187 A.2d 744

150 Conn. 220

William MALLOY v. Patrick J. HOGAN, Sheriff of the County of Hartford.

Supreme Court of Errors of Connecticut.

Jan. 3, 1963.

Harold Strauch, Hartford, for appellant (plaintiff).

Harry W. Hultgren, Jr., Hartford, with whom, on the brief, were John D. LaBelle, State's Attorney, and George D. Stoughton, Assistant State's Attorney, for the appellee (defendant).

Before BALDWIN, C. J., and KING, MURPHY, SHEA and ALCORN, JJ.

KING, Associate Justice.

On September 11, 1959, the plaintiff was arrested in a gambling raid at 600 Asylum Street, Hartford, and charged, in two counts, with pool selling in violation of § 53-295 of the General Statutes. Subsequently, on November 5, he was allowed to plead nolo contendere to the first count of the information. A finding of guilty on that count was entered, and he was ordered to pay a fine of $500 and was sentenced to one year in jail, execution of the jail sentence to be suspended after ninety days of service and probation to be in effect for two years. What disposition was made of the second count of the information is not disclosed in the printed record, but the judgment file shows that a nolle prosequi was entered as to the count immediately after the imposition of the sentence under the first count.

At some time prior to January 16, 1961, the Superior Court in Hartford County, pursuant to § 54-47 of the General Statutes entitled 'Investigations into commission of crime,' appointed the Honorable Ernest A. Inglis, formerly chief justice of Connecticut and then a state referee, to conduct an inquiry into whether there was reasonable cause to believe that crimes, including gambling, had been committed in Hartford County. Witnesses were subpoenaed to appear before the referee, and on January 16, 1961, Malloy, who had been so subpoenaed, appeared and was asked certain questions by the state's attorney. Most of these Malloy refused to answer on the ground that an answer would tend to incriminate him. Thereupon, the state's attorney indicated that the matter would have to be referred to the Superior Court for contempt proceedings under the authority of § 54-47. The referee inquired of Malloy whether he had had the advice of an attorney and he replied that he had not, since he had just received the subpoena. The referee suggested that Malloy consult an attorney before he was summoned for contempt. Apparently, contempt proceedings were not then instituted, since nine days later, on January 25, 1961, Malloy was recalled as a witness and again questioned. In the meantime, he had had full opportunity to consult counsel. The questions asked him on January 25, which he refused to answer on the same claim of privilege, were practically identical with those he had been asked on his first appearance before the referee. The questions posed on both occasions are well summarized in Malloy's brief, substantially as follows: (1) For whom did Malloy work on September 11, 1959, the date he was arrested on the charge on which he was convicted? (2) Who selected and paid his counsel in connection with that charge and his defense thereto? (3) Who selected his bondsman and who paid him? (4) Who paid Malloy's fine? (5) What was the name of the tenant in the apartment in which he was apprehended? (6) Did he know John Bergoti?

On January 26, 1961, pursuant to § 54-47, Malloy was brought before the Superior Court and, after a hearing, was found to have failed to answer proper questions before the referee and was ordered committed to jail until he answered the questions or until the further order of the court. Malloy was thereupon committed to jail. Later in the day he made application for a writ of habeas corpus, directed to the defendant as the keeper of the jail, on the ground that the confinement in jail was illegal because it was based on a denial, in violation of the fifth amendment to the constitution of the United States and of § 9 of article first of the constitution of Connecticut, of Malloy's privilege of refusing to answer questions on the ground of self-incrimination. After a hearing on February 7, 1961, the court found the issues for the defendant and that Malloy was not unlawfully confined, and it dismissed the writ of habeas corpus. From that judgment Malloy took this appeal, his basic claim of error being that his refusal to answer the questions was privileged.

The law according the privilege against self-incrimination is not open to question, but there are often difficulties in its application. The privilege is not a general one; it is, at least in all ordinary situations, to be claimed as to each question asked. United States v. Romero, 249 F.2d 371, 375 (2d Cir.); McCarthy v. Clancy, 110 Conn. 482, 490, 148 A. 551. It is not a prohibition against inquiry but confers an option of refusal to answer. State v. Kemp, 126 Conn. 60, 72, 9 A.2d 63. Our decisions from a time antedating the adoption of our constitution in 1818 have consistently recognized and upheld the privilege, and it was, by § 9 of article first, incorporated in our constitution. See, for instance, Grannis v. Branden, 5 Day 260, 272 (a malpractice case decided in 1812); Norfolk v. Gaylord, 28 Conn. 309, 312 (a civil bastardy action decided over a century ago, in 1859). This section provides that an accused in a criminal prosecution 'shall not be compelled to give evidence against himself, nor be deprived of life, liberty or property, but by due course of law.' This language is very similar to that of the fifth amendment to the United States constitution, and cases interpreting the scope and application of the fifth amendment in federal proceedings are not without persuasive force in the interpretation of our own constitutional provision. In McCarthy v. Clancy, supra, 110 Conn. 488, 148 A. 554, the privilege against self-incrimination was expressly held applicable to a witness subpoenaed in a statutory investigation similar to that in which Malloy was questioned; and in State v. Kemp, supra, the privilege was held applicable to a witness summoned to appear before a grand jury. It is clear that Malloy was clothed with this privilege when he went before the referee, so that the only question is whether his refusal to answer was justified under the rules governing the exercise of the privilege.

On the one hand, the determination whether a question does or does not tend to incriminate a person cannot be left solely to his judgment, since he could then refuse to answer obviously innocuous questions. On the other hand, if he were required completely to explain the precise basis for his belief that an answer to a given question would tend to incriminate him, he might well lose much, if not all, of the benefit of the privilege, since the state might utilize his explanation to obtain 'leads' to evidence for future use against him. Hoffman v. United States, 341 U.S. 479, 486, 71 S.Ct. 814, 95 L.Ed. 1118; Grannis v. Branden, supra.

The rule is well stated in McCarthy v. Clancy, supra, 110 Conn. 488, 148 A. 555: '[A] witness * * * has the right to refuse to answer any question which would tend to incriminate him. But a mere claim on his part that the evidence will tend to incriminate him is not sufficient. * * * [He having] made his claim, it is then * * * [necessary for the judge] to determine in the exercise of a legal discretion whether, from the circumstances of the case and the nature of the evidence which the witness is called upon to give, there is reasonable ground to apprehend danger of criminal liability from his being compelled to answer. That danger 'must be real and appreciable, with reference to the ordinary operation of law in the ordinary course of things--not a danger of an imaginary and unsubstantial character, having reference to some extraordinary and barely possible contingency, so improbable that no reasonable man would suffer it to influence his conduct. We think that a merely remote and naked possibility, out of the ordinary course of law and such as no reasonable man would be affected by, should not be suffered to obstruct the administration of justice. The object of the law is to afford to a party, called upon to give evidence in a proceeding inter alios, protection against being brought by means of his own evidence within the penalties of the law. But it would be to convert a salutary protection into a means of abuse if it were to be held that a mere imaginary possibility of danger, however remote and improbable, was sufficient to justify the withholding of evidence essential to the ends of justice.' Cockburn, C. J., in Regina v. Boyes, 1 B. & S. 311, 330; see also Brown v. Walker, 161 U.S. 591, 599, 16 Sup.Ct. 644 ; Mason v. United States, 244 U.S. 362, 37 Sup.Ct. 621 ; State v. Thaden, 43 Minn. 253, 255, 45 N.W. 447; State v. Wood, 99 Vt. 490, * * * Atl. 697, 48 A.L.R. 985; Manning v. Mercantile Securities Co., 242 Ill. 584, 90 N.E. 238; 4 Wigmore on Evidence (2d Ed.) § 2271 [now 8 Wigmore § 2271 (McNaughton Rev.1961)]. Moreover, a witness called before such a tribunal as that authorized by the statute in question, against whom no accusation or proceeding is pending, could not advance such a claim as a justification for a failure to answer any question whatsoever which might be asked; for rerely would it happen that all the evidence he might give in regard to the matter under investigation would tend to incriminate him. * * * [B]efore he would be justified in refusing to answer [a given question], it must appear that there was reasonable ground to apprehend from it some real danger of incrimination. Eckstein's Petition, 148 Pa.St. 509, 515, 24 Atl. 63; Ex parte Stice, 70 Cal. 51, 53, 11 Pac. 459. The same rules apply with regard to the production of documents. Manning v. Mercantile Securities Co., supra, 592, of 242 Ill., 90 N.E. 238, 30 L.R.A. (N.S.) 725.'

It remains to apply these principles to the questions asked Malloy. Only one question,...