People v. Uyl (In re Hemans)

• Decision Date: 13 October 1947
• Docket Number: No. 86.,86.
• Citation: 318 Mich. 645,29 N.W.2d 284
• Parties: PEOPLE v. DEN UYL et al. In re HEMANS.
• Court: Michigan Supreme Court

318 Mich. 645

29 N.W.2d 284

PEOPLE

v. DEN UYL et al.In re HEMANS.

No. 86.

Supreme Court of Michigan.

Oct. 13, 1947.

OPINION TEXT STARTS HERE Appeal from Circuit Court, Ingham County; Chester P. O'Hara, judge.

Proceeding by the People of the State of Michigan against Simon D. Den Uyl, Charles B. Bohn, and others, on charges of common-law conspiracy to willfully, wrongfully and unlawfully obstruct due course of legislation, and to willfully and corruptly affect and influence action of Michigan Legislature. From certain orders and rulings in the matter of Charles F. Hemans, a witness, the People appeal on leave granted.

Rulings affirmed.

Before the Entire Bench, except CARR, C. J.

Eugene F. Black, Atty. Gen., Edmund E. Shepherd, Sol. Gen., of Lansing, and H. H. Warner, Asst. Atty. Gen., Richard B. Foster, Sp. Asst. Pros. Atty., Charles F. Cummins and Paul C. Younger, Assts. Pros.Atty., all of Lansing, for plaintiff-appellant.

O. R. McGuirk and William G. Comb, both of Detroit, for appellee Hemans.

NORTH, Justice.

Leave having been granted, this appeal was brought by the people (see Act No. 132, Pub.Acts 1941, Stat.Ann.1946 Cum.Supp. § 28.1109) from certain rulings and orders made by Honorable Chester P. O'Hara while sitting as an examining magistrate in a preliminary examination wherein the defendants herein were charged with the criminal offense of common-law conspiracy to wilfully, wrongfully and unlawfully obstruct the due course of legislation, and to wilfully and corruptly affect and influence the action of the Michigan legislature. The rulings and orders from which the appeal was taken are more specifically hereinafter set forth.

While not literally accurate in all details, the factual background of the instant appeal may be stated as follows. In July 1946 a so-called one man grand jury investigation was being conducted by one of the Ingham county circuit judges. Charles F. Hemans, appellee herein, as a witness in the grand jury proceedings declined to answer certain questions propounded to him on the ground that answers thereto might tend to incriminate him. Thereupon the circuit judge acting as a grand juror granted Hemans immunity from prosecution as to any offense concerning which his answers might tend to incriminate him. 3 Comp.Laws 1929, § 17220, Stat.Ann. § 28.946. The immunity having been granted Hemans thereupon answered the question propounded to him. Subsequently the one man grand juror issued a warrant for the arrest of the defendants herein charging them with the offense above noted. While Hemans was named as a co-conspirator he was not made a defendant. Thereafter Hemans departed from the State of Michigan and ultimately arrived in Washington, D. C. He refused to return to Michigan to testify as a witness in the preliminary examination in the case against these defendants. In September 1946 Hemans was indicted by a Federal grand jury for allegedly leaving the State of Michigan and traveling in interstate commerce with the intent to avoid giving testimony in the cause pending against these defendants. See Title 18 U.S.C.A. § 408e. He was taken into custody, brought to the State of Michigan, and produced as a witness at an adjourned hearing of the preliminary examination of the defendants herein. In the course of Hemans' examination as a witness he was asked certain questions which he refused to answer, asserting that answers thereto tend to incriminate him in the above-noted prosecution against him then pending in the Federal court for the eastern district of Michigan, southern division. The circuit judge presiding at the preliminary examination of the defendants herein sustained the position taken by Hemans and declined to require him to answer. The examination was adjourned, and the original appeal allowed herein was from the above ruling of the circuit judge. In brief the ruling was made on the ground that the answers sought from witness Hemans might tend to incriminate him in the then pending Federal prosecution; and that immunity granted by a State court would not afford protection to Hemans in the Federal case.

Hemans, who did not testify in his own defense, was subsequently convicted in the Federal prosecution. Thereafter a motion was made by the people before the examining magistrate that he set aside the former order whereby Hemans' assertion of his constitutional rights against self-incrimination had been sustained. In support of the motion it was argued among other things that since the Federal prosecution had been concluded by a verdict of guilty, Hemans was no longer in a position to decline to testify at the examination on the ground that his testimony might be self-incriminating;that since Hemans had failed to testify in the Federal case or to assert that his testimony was an essential element or ingredicent to the prosecution of that case, he was no longer in position to assert such a contention in the instant case; and that by reason of the conviction in the Federal case ‘the danger of self-incrimination therein by answers to questions propounded in this case would be remote, fanciful, speculative, and not reasonably to be expected to arise out of the ordinary course of the law.’ In effect the same ruling was made as at the earlier hearing in the examination; and the people by supplemental proceedings have embodied in this appeal this later ruling denying the motion to set aside the former ruling. Incident to making this later ruling the examining magistrate made the following statement, with which we are in accord: ‘I do not believe that the verdict of guilty concludes that case in the Federal Court, nor does it render the danger of self-incrimination remote or fanciful or speculative, as alleged in this motion; and that does not become true, in my judgment, until such time as the time for appeal passes and the person convicted commences to serve the sentence imposed upon him without further right of appeal except by a special leave of the court, because, in my judgment, * * * if the case should for any reason be reversed and sent back for a new trial, the danger of self-incrimination again arises.’

As appears from Hemans v. United States, 6 Cir., 163 F.2d 228, Hemans' conviction in the United States district court was appealed and affirmed. We have been advised by the clerk of the United States Supreme Court that an application to that court for certiorari has been made in behalf of Hemans, which as yet has neither been granted nor denied. Hence final determination of the Federal prosecution of Hemans has not yet been accomplished. Decision of the instant case has been withheld because of the pending Federal prosecution, but we are of the opinion that orderly procedure forbids further delay.

As above noted, the circuit judge sitting as an examining magistrate sustained Hemans in his refusal to answer certain questions propounded to him on the ground of his constitutional right against self-incrimination (Mich.Const.1908, art. 2, § 16), notwithstanding Hemans, as a witness in a one man grand jury proceedings, had been granted immunity from prosecution in the State courts for any offense concerning which his testimony, relating to the same subject matter, might tend to incriminate him. See Code of Criminal Procedure. 3 Comp.Laws 1929, § 17220, Stat.Ann. § 28.946. In challenging the above ruling appellant presents the questions hereinafter reviewed.

For the purpose of decision herein it may be assumed appellant is correct in asserting that the fifth amendment to the Federal Constitution wherein it provides: ‘* * * nor shall [any person] be compelled in any Criminal Case to be a witness against himself’, does not apply to prosecution under State Laws. See the recent decision in Adamson v. People of State of California, 67 S.Ct. 1672. Aside from the above reference to the Fifth Amendment to the Federal Constitution appellant's primary contention as stated in the brief is: ‘* * * the privilege guaranteed by article 2, § 16, of the (Michigan) Constitution of 1908, i. e., that ‘no person shall be compelled in any criminal case to be a witness against himself’, should (not), in the circumstances of this case, be extended to protect a State witness from testifying as to matters that might tend to incriminate him in a pending prosecution under a law of the United States.'

On several occasions this Court has expressed itself as to the scope of immunity from self-incrimination that is afforded by article 2, § 16, of the State Constitution, just above quoted. See In re Watson, 293 Mich. 263, 291 N.W. 652;In re Schnitzer, 295 Mich. 736;In re Ward, 295 Mich. 742, 295 N.W. 483; and In re Cohen, 295 Mich. 748, 295 N.W. 481. The three cases last above cited were simultaneously handed down (December 11, 1940) after painstaking consideration of the phase of the law now under consideration. In the Ward case we said [295 Mich. 742, 295 N.W. 485]...