People v. Smith

• Decision Date: 02 March 1932
• Docket Number: No. 216.,216.
• Parties: PEOPLE v. SMITH.
• Court: Michigan Supreme Court

257 Mich. 319

241 N.W. 186

PEOPLE

v.SMITH.

No. 216.

Supreme Court of Michigan.

March 2, 1932.

Appeal from Circuit Court, Oakland County; Parm C. Gilbert, Judge.

Moe D. Smith was convicted of perjury, and he appeals.

Reversed and new trial granted.

Argued before the Entire Bench.

Pelton & McGee, of Pontiac, for appellant.

Paul W. Voorhies, Atty. Gen., Philip H. Robinson, Asst. Atty. Gen., and Clarence L. Smith, Pros. Atty., and Edward J. Fallon, Asst. Pros. Atty., both of Pontiac (H. B. Selden, of Pontiac, of counsel), for the People.

McDONALD, J.

The defendant has appealed from a conviction on a charge of perjury based on his testimony before a grand jury sitting in the county of Oakland, Mich. The jury was investigating as to the commission of crime in the letting of contracts by the school board in the township of Royal Oak. The defendant was called by subpoena to appear for questioning with reference to having solicited money for his influence with the school board in the awarding of certain contracts and as to receiving $300 from one Richard H. McGeorge, for his influence in securing a contract. Based on his answers to questions touching these matters, he was indicted by the jury for perjury.

On the trial the prosecuting attorney offered in evidence the defendant's testimony taken before the grand jury. Objection was made on the ground that when it was taken he was not advised as to his constitutional privilege in regard to answering questions that might tend to incriminate him, and that he did not waive the privilege by answering them. The court's ruling in denying this objection presents the first question for our consideration.

The defendant attended the grand jury in obedience to a subpoena. He was not in custody and was not charged with any crime. He was just an ordinary witness. He was not compelled to testify, but was not advised that he could claim his constitutional privilege and refuse to give evidence that might tend to incriminate him. He answered all questions without objection and now claims his constitutional right was violated and that his testimony there taken cannot be used against him in this trial.

The statute, section 17233, C. L. 1929, permits the testimony of a witness taken before a grand jury to be used against him on his trial for perjury. In this case it was properly received unless taken in violation of his constitutional privilege.

In his work on Evidence, page 477, § 285, Justice Potter says: ‘The privilege against self-incrimination is a personal one and may be waived or asserted at the option of the witness. * * * Where one is subpoenaed before a grand jury and testifies, he is held to have waived his privilege.’ The rule of the text is supported by Michigan authority and by current opinion in other jurisdictions. In People v. Arnold, 40 Mich. 713, this court said: ‘No doubt the witness might have declined to answer under the acknowledged rule, that no one can be compelled to criminate himself. But this is matter of personal privilege which a witness may waive, and is not a ground of objection by the people, and here the witness did not object, and we cannot assume but that he was not only willing, but desirous to answer.’

In People v. Lauder, 88 Mich. 109, 46 N. W. 956, 959, it is said:

‘A party may waive personal rights, although secured to him by law or by the constitution. * * *

‘In all cases where a personal privilege exists for a witness to testify or not, if such witness does testify without objection he will be deemed to have done so voluntarily.’

In Underhill on Criminal Evidence (2d Ed.) page 449, it is said: ‘The right to refuse to answer incriminating questions is personal to the witness. To preserve his right he must himself object. If he wishes to answer he may do so.’

State v. Duncan, 78 Vt. 364, 63 A. 225, 227,4 L. R. A. (N. S.) 1144, 112 Am. St. Rep. 922,6 Ann. Cas. 602, approves the holding in People v. Lauder, supra, and says: ‘But the privilege is an option of refusal, not a prohibition of inquiry. Hence, when an ordinary witness is on the stand, and a self-criminating act relevant to the issue is desired to be shown by him, the question may be asked, and then it is for the witness to say whether he will answer it or claim his privilege, for it cannot be known before hand which he will do.’

To summarize the pronouncements of the courts and text-writers on the question of self-incriminating evidence, it appears to be well settled that, if a witness wishes the benefit of the privilege, he must claim it; that the privilege is personal and may be waived; that it is deemed to have been waived when he fails to assert it; and that failure to warn him of his constitutional right is not a violation of the privilege.

These are general rules not applicable to all conditions and circumstances. They should not be applied where the witness is in custody accused of crime at the time the testimony is taken. Also it would seem that they ought not to be applied where the witness is brought before the jury for the sole purpose of securing evidence on which to indict him or where he is too ignorant to protect himself.

In the instant case there was no error in admitting the testimony of the defendant taken before the grand jury.

The second error alleged relates to the testimony of the witness, Lottie Thebes, a member of the school board,...