Overman v. State

• Decision Date: 22 April 1924
• Docket Number: No. 24346.,24346.
• Citation: 194 Ind. 483,143 N.E. 604
• Parties: OVERMAN v. STATE.
• Court: Indiana Supreme Court

194 Ind. 483

143 N.E. 604

OVERMAN

v.STATE.

No. 24346.

Supreme Court of Indiana.

April 22, 1924.

Appeal from Circuit Court, Starke County; W. C. Pentecost, Judge.

Harry Overman was adjudged guilty of contempt of court, and he appeals. Reversed with directions.

Wm. J. Reed, of Knoxville, Albert G. Jenkines, of Logansport, and John M. Spangler, of Winamac, for appellant.

U. S. Lesh, Atty. Gen., and Mrs. Edward F. White, Deputy Atty. Gen., for the State.

GAUSE, J.

Appellant was charged, in a statement made by the court below and entered of record, with being guilty of a direct contempt of said court, in that he refused to answer certain questions as a witness in a criminal cause then on trial before said court.

Appellant filed a statement in explanation and extenuation thereof, and thereupon the court adjudged him guilty of a direct contempt and assessed a fine of $500 and imprisonment in the Indiana State Farm of 90 days. Appellant then filed his motion asking the court to reconsider its opinion and judgment, and that he be purged of the contempt charged, which motion was overruled. Appellant then filed his motion for a new trial, which was overruled. He assigns as error the overruling of his motion to reconsider, and also the overruling of his motion for a new trial.

It appears from the court's statement: That appellant was a witness before the grand jury of Pulaski county and testified under oath in relation to the death of one Bulah Lurline Shaffer. That said grand jury returned an indictment against appellant and James Noland, Warren Morgan, and Frank Irvin, charging them with having committed an abortion upon said Bulah Lurline Shaffer, which resulted in her death. That said case was venued to the Starke circuit court and was submitted to a jury for trial. That on March 21, 1923, after evidence had been submitted by the state, but before the defendants had entered upon their defense, the case was dismissed as to appellant and appellant was discharged, upon motion of the state, to testify as a witness for the state, to which dismissal and discharge appellant objected aud excepted. That appellant was then called as a witness “to testify as a witness on behalf of the state and against the other three defendants.”

It then appears: That said appellant was asked several questions regarding his acquaintance with said deceased woman and his codefendants. That he refused to answer said questions on the ground that his answers would incriminate him, and that he claimed his personal privilege and refused to testify.

The court instructed appellant that, as the case against him had been dismissed, he could not in any wise criminate himself by testifying, and that it was the duty of the court to require him to tell what he knew, if anything, about the charges in the indictment. The court instructed him that if he did not answer he would send him to jail, but he persisted in his refusal, and the court ordered that he be taken to jail. That several hours later he was again called as a witness and again he refused to answer said questions.

The appellant then filed a written statement in explanation of his refusal, in which it is alleged that on March 20, 1923, when the appellant was on trial in said cause, and before the same had been dismissed as to him, he was twice called to the stand as a witness by the state, but refused to testify. Said statement then alleges the proceedings of March 21, 1923, substantially as shown in the court's statement. It is also alleged: That at no time did he agree to become a witness for the state or testify in said cause, and that he believed that such evidence would incriminate him and subject him to prosecution. That he never intended any contempt of the court, but has refused to testify for the reason that he believed he had the constitutional right to refuse to testify.

The court then adjudged him guilty of contempt and assessed the penalty above set out. Appellant then filed his motion to reconsider the court's opinion and judgment, and then his motion for a new trial as above stated.

The practice followed was according to the provisions of section 1046, Burns' 1914, regulating trials for direct contempt. It is apparent that the court below had the impression that section 2117, Burns' 1914, gave appellant such immunity as to secure him his constitutional right to refuse to be a witness as to any matter that might criminate him. This constitutional provision is that-

“No person, in any criminal prosecution, shall be compelled to testify against himself.” Indiana Const. § 59, Burns' 1914.

[1] This provision, which is similar in language to the like provision in the Fifth Amendment to the federal Constitution, is declaratory of the common law, and applies not only to parties accused, but to witnesses. It guarantees a person against being compelled to give evidence in any proceeding, either civil or criminal, which might be used against him in any criminal prosecution. French v. Venneman (1860), 14 Ind. 282;State v. Enochs (1879), 69 Ind. 314;Wilson v. Ohio, etc., Ins. Co. (1905) 164 Ind. 462, 73 N. E. 892;Counselman v. Hitchcock, 142 U. S. 547, 12 Sup. Ct. 195, 35 L. Ed. 1110. Jones, Blue Book of Evidence, vol. 5, § 884.

[2] He is excused from testifying, not only to that which might directly incriminate him, or would amount to an admission of guilt, but he is excused if his answer would tend to criminate him or would furnish one link in the chain of evidence necessary to convict him of a criminal charge. French v. Venneman, supra; Jones, Blue Book, vol. 5, section 885; 40 Cyc. 2540, and cases cited.

Chief Justice Marshall, on the trial of Aaron Burr, used the following language, which is recognized as stating the true rule:

“Many links frequently compose that chain of testimony which is necessary to convict an individual of a crime. It appears to the court to be the true sense of the rule that no witness is compelled to furnish any one of them against himself. It is certainly not only a possible, but a probable, case that a witness by disclosing a single fact may complete the testimony against himself, and to a very effectual purpose accuse himself as entirely as he would by stating every circumstance which would be required for his conviction. That fact of itself would be unavailing but all other facts without it would be insufficient. While that fact remains concealed in his own bosom he is safe, but draw it from thence and he is exposed to a prosecution. The rule that declares that no man is compellable to accuse himself would most obviously be infringed by compelling a witness to disclose a fact of this description.” 1 Burr's Trial, 244.

[3][4] This privilege being granted by the Constitution, it cannot be abridged by any act of the Legislature. It follows that any statute which undertakes to compel a witness to testify to any matter which might tend to show that he has committed a crime must grant to such person immunity which will fully guarantee to him his constitutional rights; that is, such a statute must protect him to the same extent as does this provision of the Constitution, and prevent his testimony being used against him in any criminal prosecution.

The statute must fully shield the witness or he cannot be compelled to testify. State v. Enochs, supra; Bedgood v. State (1888) 115 Ind. 275, 280, 17 N. E. 621; Counselman v. Hitchcock, supra; Emery's Case, 107 Mass. 172;Lamson v. Boyden, 160 Ill. 613, 43 N. E. 781; Ex parte Clarke, 103 Cal. 352, 37 Pac. 230; note in 2 Ann. Cas. 177; note in 17 Ann. Cas. 128;State v. Bach Co., 67 Ark. 163, 55 S. W. 854. It is therefore held in the above and many other cases that a statute which only relieves the witness from prosecution for the crime on trial is not as full a protection against self-crimination as the Constitution grants him.

[5] Section 2117, Burns' 1914, under which it was attempted to compel appellant to testify, reads as follows:

“When two or more persons are included in one prosecution, the court may, at any time before a defendant has gone into his defense, direct him to be discharged, that he may be a witness for the state. A defendant may also, when there is not sufficient evidence to put him on his defense, at any time before the evidence is closed, be discharged by the court for the purpose of giving testimony for a codefendant. The order of discharge shall be a bar to another prosecution for the same offense.”

It will be noted that this statute only...