People v. Clifford

• Decision Date: 13 November 1939
• Docket Number: 14461.
• Citation: People v. Clifford, 105 Colo. 316, 98 P.2d 272 (Colo. 1939)
• Parties: PEOPLE v. CLIFFORD.
• Court: Colorado Supreme Court

98 P.2d 272

105 Colo. 316

PEOPLE v. CLIFFORD.

No. 14461.

Supreme Court of Colorado, En Banc.

November 13, 1939

Rehearing Denied Jan. 8, 1940.

Error to District Court, City and County of Denver; Stanley H Johnson, Judge.

Donald F. Clifford was charged by information with bribery and attempt to bribe a member of the Legislature, and to review a judgment quashing the information, the People bring error.

Reversed.

BAKKE and OTTO BOCK, JJ., dissenting.

John A. Carroll, Dist. Atty., and Anthony F Zarlengo, Chief Deputy Dist. Atty., both of Denver, Myron G Rogers, Atty. Gen., and Reid Williams, Asst. Atty. Gen., for plaintiff in error.

Philip Hornbein, of Denver, for defendant in error.

KNOUS Justice.

Under section 500, chapter 48, '35 C.S.A., providing that in certain situations in criminal cases a writ of error shall lie on behalf of the people, the latter here seek a review of the decision of the trial court quashing an information filed therein against the defendant in error, to whom we shall hereinafter refer as the defendant.The information purported to charge bribery and an attempt to bribe a member of the Thirty-First General Assembly through the medium of intoxicating liquor allegedly furnished him by the defendant.In so far as pertinent to the error assigned, the defendant's verified motion to quash fundamentally is grounded upon the contention that the information was based upon evidence which defendant involuntarily and without warning was required to give Before a grand jury recently sitting in the City and County of Denver, at which time, although unknown to him, defendant claims he was suspected of the crime named in the information, whereby he asserts the constitutional inhibition contained in section 18 of article II of the Constitution of Colorado, to the effect that no person shall be compelled to testify against himself in a criminal case, was violated.It is conceded that when called and during the time he testified, defendant did not claim the privilege of refusing to answer any of the questions propounded on the ground that his answers might tend to incriminate him or object on any basis whatsoever.He, however, argues, as he did below, that a fair interpretation of the constitutional provision and the common-law privilege upon which it is based, requires the holding that a person may not be subjected to inquisition or called as a witness by the people in any judicial inquiry which has for its primary object the determination of his guilt or innocence of a given offense.The principle upon which the defendant relies is stated in the form most favorable to him in People v. Bermel,71 Misc. 356, 128 N.Y.S. 524, 525, in the following language: 'The general rule applicable to the examination of defendants Before the grand jury is this: If there is being conducted a general investigation into affairs and conditions private or public, not aimed at any particular individual or individuals, and witnesses are subpoenaed and sworn Before the grand jury making this investigation, a witness may claim the privilege of refusing to answer any question which might tend to incriminate him, and he cannot be compelled to answer.He cannot be compelled to be a witness against himself as to the commission of a crime Before any investigation or hearing recognized by law.* * * If the witness upon such general investigation, not aimed at him, fails to claim this privilege or constitutional right, his testimony may be used against him, or even be the basis of an indictment.But where, on the other hand, the investigation Before the grand jury is a proceeding against him, or, being ostensibly a general investigation, is, in fact, as shown by the circumstances and evidence, a proceeding against him, then the defendant's constitutional right is violated if he be subpoenaed Before the grand jury, sworn and questioned, though he makes no claim of privilege or exemption.Briefly stated, if the person testifying is a mere witness, he must claim his privilege on the ground that his answers will incriminate him, whereas, if he be in fact the party proceeded against, he cannot be subpoenaed and sworn, even though he claim no privilege.* * * The party testifying may, in fact, be the defendant or the party proceeded against, and not a mere witness, although he be not under arrest or openly charged with the crime or proceeded against in name.The title of the proceeding cannot determine rights, as constitutional protection is one of substance and not of form.If the person examined Before the grand jury be in fact the one aimed at, sought for, and charged with the crime, the title of the proceeding cannot make his examination legal.'There is an adherence to this distinction in the following cases: People v. Gillette,126 A.D. 665, 111 N.Y.S. 133;People ex rel. Hummel v. Davy,105 A.D. 598, 94 N.Y.S. 1037;Counselman v. Hitchcock,142 U.S. 547, 12 S.Ct. 195, 35 L.Ed. 1110;People v. Singer,18 Abb.N.C., N.Y., 96;People v. Haines, N.Y.Ct.Gen.Sess.,1 N.Y.S. 55;State v. Froiseth,16 Minn. 296, 16 Gil. 260;State v. Gardner,88 Minn. 130, 92 N.W. 529;State ex rel. Poach v. Sly,63 S.D. 162, 257 N.W. 113;State v. Corteau,198 Minn. 433, 270 N.W. 144.Also cited as supporting defendant's contention are: State v. Naughton,221 Mo. 398, 120 S.W. 53;State v. Rixon,180 Minn. 573, 231 N.W. 217, 68 A.L.R. 1501;United States v. Edgerton, D.C.,80 F. 374; and as to persons in custody Boone v. People,148 Ill. 440, 36 N.E. 99, andTaylor v. Commonwealth,274 Ky. 51, 118 S.W.2d 140.An exhaustive discussion of the subject will be found in Wigmore on Evidence, 2d Ed., vol. 4,§§ 2250 to 2284.

Immunity from self-incrimination is a privilege immovably fixed in our Constitution.The existence of the privilege is one of the outstanding and distinctive features of the common-law system of jurisprudence and one of the highest protections to the liberty of the citizens of a free democracy.Always the courts have been, and they should be, zealous in preserving the privilege.In so doing, however, they ought not to give it more than its due significance.It is to be respected rationally for its merits, not worshipped blindly as a fetish.Wigmore on Evidence, 2d Ed., § 2251(4).Some of the authorities above cited may justly be subject to the criticism contained in Wigmore, paragraph 2251, supra, to the effect that in recent times a few courts under the guise of reasoning and interpretation, in a spirit of implicit favor, have extended the application of the privilege 'beyond its previous limits as almost to be incredible, certainly to defy common sense.'However, for the reasons later appearing, it is not necessary that we here attempt to announce any rule or theorem on the subject, which of necessity largely depends upon the circumstances in each case, and in disposing of the matter Before uswe shall proceed upon the general theory promulgated by the authorities upon which reliance is placed by defendant, without approving or disapproving the ultimate soundness of their pronouncements.

As is obvious, the consideration of the grounds asserted in the motion required attention to matters not disclosed by the information itself.On the premise that a motion to quash will not lie where the objection does not appear or arise upon the face of the information, the people contend that the trial court erred in passing upon the legality, competency and sufficiency of the evidence adduced Before the grand jury.It is quite true that ordinarily a motion to quash an information can be granted only for defects apparent on the record and not for extraneous facts.14 R.C.L. p. 200, § 43;31 C.J.p. 802, § 376.Likewise, it is the general rule that the court will not inquire whether there was sufficient evidence Before the grand jury upon which to find the indictment.14 R.C.L. p. 205, § 49;31 C.J.p. 808, § 385.However, the motion Before us does not question that the evidence presented to the grand jury was amply sufficient to warrant an indictment, or, if lawfully developed otherwise, to justify the filing of an information but defendant therein claims that his constitutional rights were invaded by the very fact of his being called and compelled to testify without being first advised of his privilege against self-incrimination and without being informed that at the time he was suspected of committing the offense subsequently charged in the information.Thus the illegality of theinformation principally is charged, and question relating to the legality and competency of the evidence as relating to its admissibility Before the grand jury or in a subsequent trial of the defendant are not directly involved.The evidence is only pertinent of consideration in determining whether, under the circumstances disclosed, the defendant's constitutional rights were violated and not further.Although differing considerably upon the principles controlling the ultimate determination, the courts generally are in accord with the proposition that upon the constitutional ground suggested by the motion as an exception to the orthodox rule, the defendant may challenge the validity of an indictment or information ad limine.State v. Naughton, supra;State v. Smith,56 S.D. 238, 228 N.W. 240;State v. Froiseth, supra.In some jurisdictions this question may be raised by the motion to quash.State v. Smith, supra;People v. Bermel, supra;State v. Gardner, supra.And in others it has been held that a plea in abatement is the proper method for presenting the issue.State v. Naughton, supra;Burke v. State,104 Ohio St. 220, 135 N.E. 644;State v. Duncan,78 Vt. 364, 63 A. 225, 4 L.R.A., N.S., 1144, 112 Am.St.Rep. 922, 6 Ann.Cas. 602.Notwithstanding, nearly all authorities agree...