People v. McPhail, 15932.

• Citation: 118 Colo. 478,197 P.2d 315
• Decision Date: 09 August 1948
• Docket Number: 15932.
• Parties: PEOPLE v. McPHAIL et al.
• Court: Supreme Court of Colorado

197 P.2d 315

118 Colo. 478

PEOPLE v. McPHAIL et al.

No. 15932.

Supreme Court of Colorado, en Banc.

August 9, 1948

Rehearing Denied Sept. 7, 1948.

Error to District Court, City and County of Denver; Robert W Steele, Judge.

P. O McPhail and Joe S. Breuch were indicted for murder, assault with intent to commit murder, assault and battery, and assault under cover of authority as city police officers and, to review a judgment sustaining their pleas in abatement and motions to quash the indictments, the People bring error.

Reversed and remanded with directions.

HILLIARD J., dissenting.

James T. Burke, Dist. Atty., and Charles E. Grover, Deputy Dist. Atty., both of Denver, H. Lawrence Hinkley, Atty. Gen., and Duke W. Dunbar, Deputy, Atty. Gen., for plaintiff in error.

Kenneth W. Robinson, Robert D. Charlton, and Robert Swanson, all of Denver, for P. O. McPhail, defendant in error.

Edwin P. Van Cise and Philip S. Van Cise, both of Denver, for Joe S. Breuch.

BURKE Chief Justice.

Defendants in error, police officers of the city of Denver, are hereinafter referred to as defendants or by name. August 29, 1946, indictments were returned against them charging murder, assault with intent to commit murder, assault and battery, and assault under cover of authority. The alleged victim was Frank Pena, Sr. Pleas in abatement and motions to quash were sustained. The people excepted and bring the case here for review under authority of Section 500, Chapter 48, Page 1145, Volume 2, '35 C.S.A.; assigning as error the rulings above referred to. The principal basis of the motions and pleas was that defendants' constitutional rights were violated by their being called, sworn and examined before a grand jury on matters then under investigation and touching charges later contained in the indictments. The answer thereto was that they had waived their immunity. They further contended that their examination was contrary to Section 448, Chapter 48, Page 1108, Volume 2, '35 C.S.A., which provides that the grand jury '* * * shall hear the witnesses on behalf of the people only * * *.' Minor points mentioned in the briefs require no notice.

On petition of the district attorney a special grand jury was called to investigate 'charges of unnecessary roughness, assault and brutality, against law enforcement officers of the city and county of Denver.' July 15, 1946, it was instructed, inter alia:

'It is your duty, as a body, to investigate and inquire into alleged infractions of the laws of this commonwealth. In so doing, you may call before you such persons as you believe may throw light upon the matter under investigation and you may examine such persons as witnesses. * * * Unlike the jury sitting in the trial of a cause, you will hear only witnesses for the people, * * *. You are not limited by these instructions in the scope of your investigations.'

In the discharge of its duties the grand jury was investigating the circumstances surrounding the death of Frank Pena, Sr., at which time the defendants were subpoenaed and sworn and the following proceedings were had:

Witness McPhail, questioned by deputy district attorney Anderson:

'Q. I am going to ask you a few questions concerning another case, the case of Frank Pena, Sr., in which you were also involved, * * *. I think I should again for the purpose of the record here warn you that you may be the subject of investigation. I don't know. You have a constitutional right and a legal right to decline to answer any questions that may tend to incriminate you. Now, knowing that, do you wish to waive your constitutional right and voluntarily testify concerning that case? A. I have nothing to fear. I have nothing to hide or conceal. I have nothing--I have no reason for not waiving it.

'Q. Well, do you waive your right? A. Yes, I will waive it.

'Q. And will you go ahead and testify here voluntarily, understanding your legal right in the matter, and tell us what you know about it? A. Yes, I will tell you what I know about it.'

Thereupon McPhail was accordingly examined.

Witness Breuch, questioned by deputy district attorney Anderson:

'Q. Now officer Breuch * * * I am going to ask you some questions concerning the case of Frank Pena, Sr. You have a constitutional right, as you know, to decline to answer any questions which may tend to incriminate you. You may waive that right if you choose, and voluntarily answer the questions, or you may stand upon your constitutional rights and refuse to answer the questions. Now I want to advise you fully about that so you will know what your situation is here. * * * You remember the incident don't you? A. Yes, I do.

'Q. Now this is the thing I am going to question you about and if there is anything in that that you think might tend to incriminate you, you have a constitutional privilege to decline to answer my questions. You can't be forced to give any testimony against yourself; you know that as a police officer? A. Yes, I do.

'Q. And you have that right. If you want to waive it you can. If you don't want to you don't have to. What do you want to do? A. I will waive it then, and answer your questions.

'Q. You want to waive your constitutional right? A. Yes sir.

'Q. You understand here you are testifying voluntarily? A. I do.

'Q. Nobody has promised you anything, have they? There has been no promise of immunity? A. Nobody has even talked about it since the Coroner's inquest.

'Q. Nobody has offered you any immunity for coming here and testifying? A. No.

'Q. You don't expect any? A. No.'

Thereupon Breuch was accordingly examined.

On this record it is contended by counsel for defendants that their 'constitutional privilege against self incrimination was violated.'

'No person shall be compelled to testify against himself in a criminal case * * *.' Sec. 18, Art. II Colorado Constitution.

It is uniformly held that said section extends its protection to proceedings before grand juries. The record clearly discloses that at the time defendants were called and examined the grand jury was investigating all angles of the death of Frank Pena, Sr.

Counsel for defendants divide the several states on whose decisions they rely into: a. Those which forbid the subpoena of any defendant before a grand jury. b. Those which forbid the calling of anyone under investigation. c. Those which grant immunity to one testifying under compulsion of subpoena. And d. Those holding that ample information...