Samuel v. People

• Decision Date: 10 November 1896
• Citation: 45 N.E. 728,164 Ill. 379
• Parties: SAMUEL v. PEOPLE.
• Court: Illinois Supreme Court

164 Ill. 379

45 N.E. 728

SAMUEL

v.PEOPLE.¹

Supreme Court of Illinois.

Nov. 10, 1896.

Error to appellate court, Third district.

Wilkin Samuel was convicted in the county court of De Witt county of keeping a gaming house, and appealed to the appellate court, where the judgment was affirmed (61 Ill. App. 186), and he brings error. Affirmed.

R. A. Lemon, for plaintiff in error.

Maurice T. Moloney, Atty. Gen., John Fuller, State's Atty., T. J. Scofield, and M. L. Newell, for the People.

MAGRUDER, C. J.

This was a proceeding under an information by the state's attorney against the defendant, filed in the county court, on the 14th day of December, 1894, containing six counts, charging the defendant with gaming, keeping a gaming house, and, in the first count of said information, that he ‘did permit persons unlawfully to come together, and play at a game with cards, and sport for money and other valuable things, to wit, chips of the value of ten cents each, at and in a house then and there unlawfully kept, used, and occupied by him,’ etc. And at the common-law term of the said court, on January 21, 1895, a trial was had before the court, a jury having been waived; and the court found the defendant guilty under the first count of the information, being the one quoted from above, and sentenced him to pay a fine of $150 and costs of suit, which judgment has been affirmed by the appellate court; and the present writ of error is sued out to review such judgment of affirmance.

On the trial of the case, a witness who testified was one Oscar King, who had previously signed an affidavit upon the back of the information to the effect that the allegations therein contained were true. There was an ordinance in force in the city of Clinton making it a penal offense for any person to frequent or visit or be found in any room or house or place used for the purposes of gaming, or to bet on any such game when played by others. This witness, when placed upon the stand, and interrogated by the state's attorney, claimed his privilege to decline answering each and every question propounded to him by the state's attorney touching the question of his being in any gaming house or room or place used for that purpose, or playing at any game, or giving a description of the room or place wherein any such gaming occurred, etc., on the ground that the answers which the truth would compel him to give would tend to criminate himself, or render him liable to the penalty prescribed by said ordinance. The court refused to entertain his claim of privilege, and compelled him to testify to all that he knew concerning said matters, notwithstanding his claim of privilege, upon the ground that, he having voluntarily and at his own request caused the prosecution to be commenced, his privilege was waived. One other witness testified that the plaintiff ran a gambling house within the required time prescribed by law. The third witness claimed his privilege, and refused to answer on the ground that a truthful answer would tend to incriminate himself. There was no evidence offered by the defense.

Two questions are presented for our consideration by this record.

1. Where a witness in a criminal prosecution claims his privilege of refusing to answer a question upon the ground that the answer will criminate him or expose him to a penal liability, is the court justified in disallowing such claim, if it appears that the witness has previously made an affidavit, indorsed upon the back of the information filed by the district attorney, stating that the matters and things set out in the information are true? It is contended in this case that the witness claiming the privilege caused the prosecution to be commenced by his voluntary act of swearing to the truth of the information, and that he thereby waived his right to insist upon his privilege, when called upon to testify at the trial subsequently taking place. It is urged in support of this contention that a man ought not to be permitted to set the machinery of the law in motion, and then afterwards turn the prosecution into naught by withholding his evidence. The privilege in question is a constitutional right, of which the citizen cannot be deprived by either legislatures or courts. Section 10 of the bill of rights says: ‘No person shall be compelled in any criminal case to give evidence against himself.’ 1 Starr & C. Ann. St. p. 104. The privilege, which a witness has, of refusing to give evidence which will criminate himself, is granted to him upon grounds of public policy, and as one of the safeguards of his personal liberty. It cannot be regarded as released or waived by some disclosure, which he may have made elsewhere, and under other circumstances. If the answer to a question put to him as a witness upon the stand might tend to criminate him, it would not tend any the less to do so because he had elsewhere made a statement having such a tendency. The question is not as to what he may have previously said in an affidavit, but the question is whether the disclosure he is asked to make as a witness upon the trial of the case will have a tendency to expose him to criminal charge or penalty. We are of the opinion that his constitutional right in this regard is not abridged or waived by the fact of making the ex parte affidavit indorsed upon the back of the information filed by the prosecuting attorney. Minters v. People, 139 Ill. 363, 29 N. E. 45;Lamson v. Boyden, 160 Ill. 613, 43 N. E. 781. Reliance is placed upon the doctrine, announced in a number of cases that a witness who voluntarily and understandingly discloses part of a transaction exposing him to a criminal prosecution, without claiming his privilege, is ordinarily obliged to go forward, and complete the narrative, by stating the whole of the transaction. Whart. Cr. Ev. (9th Ed.) § 470; 29 Am. & Eng. Enc. Law, p. 844. This doctrine, however, can have no application here, unless the statements made in the affidavit indorsed upon the information and the statements made in the testimony elicited upon the trial may be regarded as parts of one continuous account. We do not think, however, that, under the doctrine thus invoked, the affidavit and the evidence on the trial can be thus run together, so as to be considered one statement. The doctrine applies only to a case where the witness, while testifying upon the trial, states a fact, and afterwards refuses to give the details, or discloses a part of a transaction in which he was criminally concerned, without claiming his privilege, and then refuses to go forward, and state the whole; it does not apply to a case where some admission made long prior to the trial is sought to be brought forward and joined to the answers given on the trial. State v. Foster, 23 N. H. 348;People v. Freshour, 55 Cal. 375; Town of Norfolk v. Gaylord, 28 Conn. 309.

The information in this case is presented by the state's attorney. It so states in the beginning, and is signed by him. Under the statute, all offenses cognizable in county courts must be prosecuted by information of the state's attorney, attorney general, or some other person; and the statute provides that, when an information is presented by any person other than the state's attorney or attorney general, it shall be verified by affidavit of such person that the same is true. 1 Starr & C. Ann. St. p....