Scribner v. State

• Decision Date: 31 May 1913
• Parties: SCRIBNER v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

132 P. 933

9 Okla.Crim. 465, 1913 OK CR 131

SCRIBNER v. STATE.

Court of Criminal Appeals of Oklahoma

May 31, 1913

Syllabus by the Court.

Constitutional provisions should receive a broader and more liberal construction than is applied to statutes. The question is not so much what the convention meant which framed the Constitution, but the supreme and controlling question is What did the people mean whose votes adopted and placed the Constitution in force?

A narrow, technical, forced, or unnatural construction should never be placed upon the language of a constitution; neither should courts indulge in or follow any ingenious refinements or subtlety of reasoning as to the meaning of its provisions.

Section 21 of the Bill of Rights of the Constitution, which, among other things, provides that "no person shall be compelled to give evidence which will tend to incriminate him, except as in this Constitution specifically provided," simply protects each person in the right of silence. It does not mean that he shall not be allowed or permitted to give testimony which may tend to incriminate him. The right of silence is one which may be waived, either by contract or by the voluntary act of the witness, and is waived if the right is not asserted in apt time.

Before any person can secure immunity under section 27 of the Bill of Rights of our Constitution on account of incriminatory evidence, given by him as a witness before a grand jury, or in any court, such witness must have testified under an agreement made with the prosecuting attorney, approved by the court, or such witness must have claimed the privilege of silence, which was by the court denied, and such witness must have been compelled by the court to so testify. Immunity will not then be granted unless such witness acts in good faith with the state, and testifies truthfully and fully as to all material facts within his knowledge touching the matter under inquiry.

A plea of immunity cannot be presented by demurrer, and should not be submitted to a jury under a plea of not guilty, but must be raised alone by a plea in bar, in support of a motion addressed to the court, which plea and motion should be by the court decided without the intervention of a jury.

Under section 6005, Rev. Laws 1910, no judgment of conviction can be set aside or new trial granted on the ground of a misdirection of the jury, or improper admission or rejection of evidence, or as to any error in the matter of pleading or procedure, unless in the opinion of the court, after an examination of the entire record, it appears that such error constitutes a material violation of the constitutional or statutory rights of a defendant, or probably resulted in a miscarriage of justice.

Appeal from District Court, Pontotoc County; Robt. M. Rainey, Judge.

Andy Scribner was convicted of murder, and he appeals. Affirmed.

Crawford & Bolen, of Ada, for appellant.

Chas West, Atty. Gen., Smith C. Matson, Asst. Atty. Gen., and Robert Wimbish, of Ada, Co. Atty., for the State.

FURMAN J.

Counsel in their brief contend that the court erred in not sustaining the plea in bar and in not discharging the defendant. The record shows that on the 12th day of June, 1909, an indictment was returned in the district court of Pontotoc county, wherein Andy Scribner, John Scribner, Dan Scribner and Frank Scribner were jointly charged with the murder of one Lillie Scribner. On the 9th day of November thereafter appellant filed a motion to abate said action, upon the ground that he had given testimony before the grand jury having the killing of Lillie Scribner under investigation, in which he testified to facts and circumstances which tended to show that Frank Scribner was guilty of said murder. A determination of this question involves a construction of section 21 of the Bill of Rights of the Constitution of Oklahoma, which, among other things, provides: "No person shall be compelled to give evidence which will tend to incriminate him, except as in this Constitution specifically provided." And also a construction of section 27 of the Bill of Rights of the Constitution of Oklahoma, which is as follows: "Any person having knowledge or possession of facts that tend to establish the guilt of any other person or corporation charged with an offense against the laws of the state, shall not be excused from giving testimony or producing evidence, when legally called upon so to do, on the ground that it may tend to incriminate him under the laws of the state; but no person shall be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter, or thing concerning which he may so testify or produce evidence."

In construing a statute or constitutional provision the viewpoint of the court is a matter of first importance. Courts of equal ability, learning and integrity, viewing the same questions from different standpoints, will arrive at different conclusions. The importance of the viewpoint of the court, and the consequences resulting therefrom, is clearly pointed out and illustrated in the case of State v. Coyle, 8 Okl. Cr. 686, 130 P. 316. The policy of this court is to construe penal statutes liberally, in order that they may accomplish the purposes for which they were enacted, and in furtherance of justice. In other words, we believe that penal statutes should be made to reach and destroy the evils at which they were aimed by the Legislature. See Caples v. State, 3 Okl. Cr. 72, 104 P. 493, 26 L. R. A. (N. S.) 1033. Constitutional provisions should receive a broader and more liberal construction than is applied to statutes. The rule of construction of a statute is the intention of the Legislature. In construing constitutional provisions the question is not so much what the convention meant which framed the Constitution, but the supreme and controlling question is what the people whose votes adopted and placed the Constitution in force intended.

Mr Cooley, in his work on Constitutional Limitations, p. 89, says: "The object of construction, as applied to a written Constitution is to give effect to the intent of the people in adopting it. " On page 92 the same author says: "In interpreting clauses we must presume that words have been employed in their natural and ordinary meaning. As Marshall, C.J., says: The framers of the Constitution, and the people who adopted it, 'must be understood to have employed words in their natural sense, and to have intended what they have said.' [Gibbons V. Ogden, 9 Wheat. 1, 188, 6 L.Ed. 23]. This is but saying that no forced or unnatural construction is to be put upon their language, and it seems so obvious a truism that one expects to see it universally accepted without question; but the attempt is made so often by interested subtlety and ingenious refinement to induce the courts to force from these instruments a meaning which their framers never held that it frequently becomes necessary to redeclare this fundamental maxim. Narrow and technical reasoning is misplaced when it is brought to bear upon an instrument framed by the people themselves, for themselves, and designed as a chart upon which every man, learned and unlearned, may be able to trace the leading principles of government." On page 101 the same author says: "When the inquiry is directed to ascertaining the mischief designed to be remedied, or the purpose sought to be accomplished by a particular provision, it may be proper to examine the proceedings of the convention which framed the instrument. Where the proceedings clearly point out the purpose of the provision, the aid will be valuable and satisfactory; but where the question is one of abstract meaning, it will be difficult to derive from this source much reliable assistance in interpretation. Every member of such a convention acts upon such motives and reasons as influence him personally, and the motions and debates do not necessarily indicate the purpose of a majority of a convention in adopting a particular clause. It is quite possible for a clause to appear so clear and unambiguous to the members of a convention as to require neither discussion nor illustration; and the few remarks made concerning it in the convention might have a plain tendency to lead directly away from the meaning in the minds of the majority. It is equally possible for a part of the members to accept a clause in one sense and a part in another. And even if we were certain we had attained to the meaning of the convention, it is by no means to be allowed a controlling force, especially if that meaning appears not to be the one which the words would most naturally and obviously convey. For as the Constitution does not derive its force from the convention which framed but from the people who ratified it, the intent to be arrived at is that of the people, and it is not to be supposed that they have looked for any dark or abstruse meaning in the words employed, but rather that they have accepted them in the sense most obvious to the common understanding, and ratified the instrument in the belief that that was the sense designed to be conveyed. These proceedings therefore are less conclusive of the proper construction of the instrument than are legislative proceedings of the proper construction of a statute, since in the latter case it is the intent of the Legislature we seek, while in the former we are endeavoring to arrive at the intent of the people through the discussions and deliberations of their representatives. The history of the calling of the convention, the causes which led to it, and the discussions and issues before the people at the time of the election of the delegates, will sometimes be quite as instructive and satisfactory as anything to be gathered from the...