People v. McCormick

• Decision Date: 27 February 1951
• Citation: 102 Cal.App.2d Supp. 954,228 P.2d 349
• Court: California Superior Court
• Parties: 102 Cal.App.2d Supp. 954 PEOPLE v. McCORMICK. PEOPLE v. STEINBERG. C. A. 2686, 2695. Appellate Department, Superior Court, Los Angeles County, California

Page 349

228 P.2d 349

102 Cal.App.2d Supp. 954

PEOPLE v. McCORMICK.

PEOPLE v. STEINBERG.

C. A. 2686, 2695.

Appellate Department, Superior Court, Los Angeles County, California.

Feb. 27, 1951.

W. E. Simpson, Dist. Atty., Jere J. Sullivan, Deputy Dist. Atty., and Ralph F. Bagley, Deputy Dist. Atty., Los Angeles, for appellant.

Margolis & McTernan, Los Angeles, for respondents.

Harold W. Kennedy, County Counsel, Gerald G. Kelly, Asst. County Counsel, Robert L. Trapp, Deputy County Counsel and Arvo Van Alstyne, Deputy County Counsel, Los Angeles, amici curiae, in support of appellant's position.

A. L. Wirin, Fred Okrand and Edmund W. Cooke, Los Angeles, Ibanez & Snider and Frank Pestana, Hollywood, Robert W. Kenny, Los Angeles, Edward Mosk, Hollywood, George Altman, Charles J. Katz, Herbert Ganahl, Eleanor Jackson and Richard L. Rykoff, Los Angeles, amici curiae, in support of respondents' position.

BISHOP, Judge.

The proceedings in each of these cases ran the same course. Each defendant was charged with having failed to register as a member of a Communist organization, as required by county ordinance number 5578. A demurrer was filed to each complaint and sustained on the ground that the provisions of the ordinance, alleged to have been disobeyed, were without force because of constitutional restrictions. From the judgment of dismissal that followed in each case, the People have appealed. We have reached the conclusion that the ordinance violates the principle written into the Bill of Rights of the Federal Constitution, Amendment V, which 'is found in the constitution of every state in the country' Ex parte Cohen, 1894, 104 Cal. 524, 527, 38 P. 364, 365, 26 L.R.A. 423, and which is given this expression in section 13, Article I, of our State Constitution: 'No person shall * * * be compelled in any criminal case, to be a witness against himself'. It inevitably follows that we find the ordinance to be without validity and, as a consequence, hold that the dismissals of the complaints based upon it were proper.

We referred to the Fifth Amendment to the Federal Constitution. That amendment has not yet been incorporated into the Fourteenth Amendment, so it does not affect the ordinance in question, Adamson v. People of State of California, 1946, 332 U.S. 46, 51-55, 67 S.Ct. 1672, 91 L.Ed. 1903, 1908-1910 any more than do the like provisions in the constitutions of our sister states. The widespread appearance of the prohibition against self-incrimination was noted to indicate that it is a thoroughly settled policy in the American system of justice, and that we may look to the interpretation given in federal and other cases as an aid to an understanding of the words quoted from our constitution.

At first glance, the provision in question does not appear to touch the situation covered by the ordinance. The ordinance--we shall look into some of its terms more clearly a bit later--only requires those covered by its provisions to register with the sheriff. It does not purport to compel any one to be a witness in a criminal case, nor does it deal with people who are witnesses in criminal cases. Such observations, however, miss the point of the provision entirely. The words, 'No person shall * * * be compelled, in any criminal case, to be a witness against himself' mean that no person shall be compelled to make any statement, orally or in writing, anywhere or at any time, which may be made use of against him in any criminal prosecution, then pending or which might thereafter be brought against him. With almost complete unanimity the cases find in the words more than is literally there. The protection afforded includes but goes beyond the assurance to a defendant on trial in a criminal case that he will not be compelled to testify against himself. The protection intended applies even before the commencement of a criminal case and secures one who may reasonably be expected to be a defendant from furnishing ammunition to be used against him.

It is important that the meaning of the provision we are considering be correctly understood, for we know that we should not lightly agree that the county ordinance is invalid; we must be sure of our ground before we declare that the attempt it makes to contribute to the solution of a difficult problem is a futile gesture. We find the meaning of the provision made clear in many cases. In Ex parte Clarke, 1894, 103 Cal. 352, 37 P. 230, the petitioner had been imprisoned because he refused to answer questions put to him in a proceeding initiated by his assignee in insolvency, the object of which inquiry was to ascertain whether or not the petitioner had concealed assets which he should have turned over to the assignee. Had he concealed any of such assets he would have violated section 154, Penal Code, and so been guilty of a high-grade misdemeanor. Viewing petitioner's plight, our Supreme Court stated in an opinion written by Chief Justice Beatty, 103 Cal. 354-355, 37 P. 231: 'No person can be compelled, in any criminal case, to be a witness against himself. Const. art. 1, § 13. To bring a person within in the immunity of this provision it is not necessary that the examination should be attempted in a criminal prosecution against the witness, or that such a prosecution should have been commenced and actually pending. It is sufficient if there is a law creating the offense under which the witness may be prosecuted. If there is such a law under which the witness may be indicted or otherwise prosecuted for a public offense arising out of the acts to which the examination relates, he cannot be compelled to answer in any collateral proceeding, unless the law absolutely secures him against any use in a criminal prosecution of the evidence he may give; and this can only be done by a provision that, if he submits to the examination, and answers the questions, he shall be exempt from any criminal prosecution for the offense to which the inquiry relates. All these propositions are decided by the supreme court of the United States, upon an exhaustive review of the authorities in the case of Counselman v. Hitchcock, 142 U.S. 547, 12 S.Ct. 195 [35 L.Ed. 1110],--a case in every essential particular identical with this.'

A like meaning is given to the protecting words of the Constitution in Ex parte Cohen, supra, 1894, 104 Cal. 524, 38 P. 364. The petitioner had been imprisoned until he would answer questions asked him during an examination concerning another person, held before a committing magistrate. We find this discussion in the opinion illuminating, 104 Cal. 527-528, 38 P. 365: 'The provision that a person shall not be compelled 'in a criminal case' to be a witness 'against himself' is to be construed as protecting him from being compelled to give any evidence which in a criminal prosecution against himself might in any degree tend to establish the offense with which he may be charged. It is only when his evidence may tend to establish an offense for which he may be punished under the laws of the state that he is a witness 'against himself' in a criminal case. The 'criminal case' in which he is a witness need not be against himself, but his immunity from compulsion extends to all evidence which may be used in any criminal case against himself, under whatever circumstances such evidence may be sought * * *.' The circumstance that the court thereafter determined that no answer to the questions asked of the petitioner could tend to incriminate him, because of statutory immunity, does not detract from the force of the words quoted.

In Ex parte Tahbel, 1920, 46 Cal.App. 755, 189 P. 804, the petitioner sought his fifteen year old son's release from detention in Juvenile Hall, where he was confined because he would not answer some questions which were pertinent to a petition that he be declared to be a ward of the Juvenile Court for having committed perjury. In support of its conclusion that the detention was illegal, the District Court of Appeal, Finlayson, P. J., writing the opinion, stated, 46 Cal.App. 758-759, 189 P. 806: 'According to one of the oldest maxims of the common law, 'Nemo tenetur seipsum accusare,' any person, whether a party or stranger to the litigation, either in a civil action or a criminal prosecution, may, if he sees fit, refuse to answer any question the answer to which, if true, will render him punishable for crime, or which, in any degree, may tend to establish a public offense with which he might be charged. Rapalje on Witnesses, § 261. This principle of the common law doubtless had its birth in the abhorrence with which confessions coerced by inquisitorial torture were regarded alike in England and America. 8 R.C.L., p. 78. Its soundness has seldom been questioned. And to-day it stands among the guaranties of personal liberty and security in all the Constitutions, both of England and America.' We add, that there is nothing in the many trials reported from behind the iron curtain, with their inevitable confessions, that tempts us to whittle away at this principle established in our judicial system.

In re Lemon, 1936, 15 Cal.App.2d 82, 59 P.2d 213, and Ex parte Critchlow, 1938, 11 Cal.2d 751, 81 P.2d 966, do not cast much new light upon our problem, but they serve to indicate that the light of the earlier cases remains undimmed.

The predicament of three more persons who found themselves jailed because of their refusal to answer questions gave rise to three opinions in which it was held that the protection of section 13, article I, is not limited to cases where the declaration demanded would amount to an involuntary confession of the crime itself, but is so broad that one is not required to reveal any detail that might assist in convicting him of a crime. In Ex parte Berman, 1930, 105 Cal.App. 37, 44-45, 287 P. 125, 128, the court made a quite extensive quotation from an opinion of Chief Justice Marshall, given in the case of United States v. Burr (In re...