State v. Billups

• Decision Date: 10 May 1937
• Docket Number: 32715
• Citation: 174 So. 50,179 Miss. 352
• Court: Mississippi Supreme Court
• Parties: STATE v. BILLUPS

174 So. 50

179 Miss. 352

STATE v. BILLUPS

No. 32715

Supreme Court of Mississippi

May 10, 1937

Division B

1. CRIMINAL LAW.

Word "evidence" within constitutional provision that defendant in criminal prosecution shall not be compelled to give evidence against himself means evidence by defendant out of court as well as in court, and means not only evidence extorted from a defendant by force outside of court, but also evidence obtained from his books and records brought in by process of court (Const. 1890, section 26).

2. CRIMINAL LAW.

In prosecution for conspiracy to defraud state of gasoline excise taxes, evidence furnished by accused's books which showed date of shipment and number of car of gasoline without which evidence state could not proceed with prosecution, which books were involuntarily taken from accused by a subpoena duces tecum issued by state senatorial committee, held incompetent (Const. 1890, section 26).

3. CRIMINAL LAW.

Gasoline distributor who voluntarily appeared before investigating committee of state Senate and offered evidence could not be convicted of conspiracy to defraud state of gasoline excise taxes in view of statute furnishing immunity from criminal prosecution whether evidence is given voluntarily or as result of compulsion, provided, if voluntary, it is given without procurement or contrivance on part of witness (Code 1930, section 5340).

4. CRIMINAL LAW.

Where judgment acquitted defendant of conspiracy to defraud state of gasoline excise taxes, state had right of appeal under statute (Code 1930, section 19, par. 2).

HON. S F. DAVIS, Judge.

APPEAL from the circuit court of Humphreys county HON. S. F. DAVIS Judge.

R. A Billups was indicted for conspiracy to defraud the State of gasoline excise taxes, and, from a judgment acquitting him, the State appeals. Affirmed.

Affirmed.

Wm. H. Maynard, Assistant Attorney-General, for the State.

The State has the right to appeal in this case.

"The State or any municipal corporation may prosecute an appeal from a judgment of the circuit court in a criminal cause in the following cases: (2) from a judgment actually acquitting the defendant where a question of law has been decided adversely to the state or municipality; but in such case the appeal shall not subject the defendant to further prosecution, nor shall the judgment of acquittal be reversed, but the Supreme Court shall nevertheless decide the question of law presented."

Section 19, Code of 1930.

The court, in construing a statute, will assume that the Legislature employed the words of the statute in their usual and most common sense.

State v. Newman Lbr. Co., 67 So. 215, 103 Miss. 263; Town of Union v. Ziller, 151 Miss. 467, 118 So. 293; War-burton Supply Co. v. City of Jackson, 151 Miss. 503, 118 So. 606; Chattanooga Sewer Pipe Works v. Dumler, 153 Miss. 276, 120 So. 450.

The word "acquittal" is not confined in its meaning to a judgment in favor of defendant after a trial on the merits and facts of the case, but may also have the broader signification of a discharge by judgment rendered for other reasons.

Junction City v. Keeffe, 40 Kans. 275, 19 P. 735; Dolloway v. Turrill, 26 Wend. 383; Morgan County v. Johnson, 31 Ind. 463.

"Acquitted," as used in a criminal proceeding is synonymous with the word "discharged."

Teague v. Wilks, 3 McCord, 461; Sherman v. Sherman, 23 S.D. 486, 122 N.W. 439; State v. Keerl, 85 P. 862, 33 Mont. 501.

While our own court has never expressly stated that the sustaining of a plea of immunity is acquitting in the language of Section 19 of 1930 Code, it has clearly shown that this is the definition intended. Our court has never had occasion to consider the immunity statute here presented. (Sec. 5340 of the 1930 Code). But has decided many cases arising under the Intoxicating Liquor Immunity Statute. (Sec. 1991, which is with reference to testimony given before a grand jury or before any court on intoxicating liquor violations.)

Griffin v. State, 127 Miss. 315, 90 So. 81; Sudduth v. State, 136 Miss. 742, 101 So. 711.

In all of the other cases arising under Section 1991 of the 1930 Code and the former statutes containing the same subject matter, the Supreme Court has dealt with the plea of immunity as a plea in bar and has approved instructions to the jury that if the jury believed certain facts with reference to the immunities that said jury should acquit the defendant on the merits of the case.

Lucas v. State, 130 Miss. 8, 93 So. 437; Hosey v. State, 136 Miss. 5, 100 So. 577; Wall v. State, 105 Miss. 543, 62 So. 417; Thornton v. State, 143 Miss. 262, 108 So. 708; Evans v. State, 157 Miss. 645, 128 So. 737.

We gather from the authorities in cases here cited that the judgment of the lower court acquitted defendant within the meaning of Section 19 of the 1930 Code.

We respectfully submit that the State has a right to appeal in this case and that this appeal should be entertained by this Honorable Court.

The lower court should have overruled appellee's special plea of immunity.

It is appellant's contention that appellee is not entitled to immunity under Section 5340 because of this testimony for the reason that, first, he procured and contrived himself to be examined as a witness (which would expressly take him out from under the operation of Section 5340) and, second, that the testimony which he gave on February 18, 1936, was not incriminating.

We submit that two things are necessary under Section 5340 before a person shall be granted immunity, to-wit: He must testify without procurement or contrivance, and, second, he must be required to testify.

It is our contention in this case that appellee's testimony of February 18, 1936, before the Legislative Investigating Committee, was given by procurement or contrivance on appellee's part and that he was not required to testify.

Lucas v. State, 130 Miss. 8, 93 So. 437; Thornton v. State, 143 Miss. 262, 108 So. 709; Evans v. State, 157 Miss. 645, 128 So. 737.

Certainly, as this court has clearly indicated, in the Thornton and Evans cases, supra, that even under Section 1991, which contains no exceptions as to testimony at instance of or by procurement of defendant, it would be inclined to hold that under Section 5340, which contains these express provisions as to procurement and compulsory testimony, appellee is not entitled to immunity for the testimony which he gave before the Committee on February 18, 1936. The first portion of Section 5340 states that to entitle a defendant to immunity from prosecution he must be examined as a witness "without procurement or contrivance, on his part."

Of course, to ascertain whether a person has contrived or procured himself as a witness, it is necessary to judge his intent by his acts, drawing from those acts the conclusions warranted.

The rule is that a man will be presumed, in the absence of evidence to the contrary, to intend the necessary or the natural and probable consequences of his voluntary act.

16 C. J. 81; Barcus v. State, 49 Miss. 17, 19 Am. Rep. 1; 1 Bishop's Cr. L. (8 Ed.), sec. 735.

Appellee had a constitutional right not to be made to testify against himself. The State passed Section 5340 making him testify, but giving him immunity if he were made or required to testify. In order to avail himself of this privilege his testimony must be compelled. If he voluntarily, at his own instance, testifies, Section 5340 has no application for even without said section he could waive his constitutional rights not to be a witness against himself.

Brown v. State, 173 Miss. 542, 158 So. 339; U. S. v. Commissioner of Immigration, 273 U.S. 103, 71 L.Ed. 560; Powers v. U.S. 223 U.S. 303, 56 L.Ed. 448; U. S. v. Murdock, 284 U.S. 141, 76 L.Ed. 210.

The sole purpose of the immunity section is to insure a defendant the same rights he had under the Constitution and no more.

Brown v. Walker, 161 U.S. 591, 40 L.Ed. 819; Glick-stein v. U.S. 222 U.S. 139, 56 L.Ed. 128.

Another reason why appellee can claim no immunity for the oral testimony given on February 18, 1936, is that that testimony did not incriminate him.

Heike v. U.S. 227 U.S. 131, 57 L.Ed. 450; Arndstein v. McCarthy, 65 L.Ed. 138; Hosey v. State, 136 Miss. 5, 100 So. 519; 3 Wigmore on Evidence, sec. 2881; Brown v. Walker, 161 U.S. 591, 40 L.Ed. 819.

Appellee is entitled to no immunity under Section 5340 because of the circumstances surrounding his books.

Our contention that appellee is not entitled to immunity under Section 5340 because of his books getting before the Committee may be summarized as follows: first, the only immunity allowed by said section with reference to books is that said books shall not be "competent evidence in any criminal proceedings against such witness" and that the State is not here trying to use said books as evidence; second, appellee was not sworn and examined concerning these books, as required by the statute; third, appellee furnished said books in order to procure and contrive immunity; fourth, appellee's books were not compelled to be produced before the Committee as required by Section 5340.

Wilson v. U.S. 221 U.S. 361, 55 L.Ed. 771; 38 R. C. L., sec. 13; 71 C. J., Witnesses, sec. 899; Sherwin v. U.S. 268 U.S. 368, 69 L.Ed. 1001; Counselman v. Hitchcock, 142 U.S. 547, 35 L.Ed. 1110; Arndstein v. McCarthy, 254 U.S. 71, 65 L.Ed. 138; Emery's case, 107 Mass. 172, 9 Am. Rep. 22.

The plea of immunity should have been tried by a jury.

Griffin v. State, 127 Miss. 315, 90 So. 81; Lucas v. State, 130 Miss. 8, 93 So. 437; Hosey v. State, 136 Miss. 5, 100 So. 519; Turnage v. State, 134 Miss. 431, 99 So. 9; Ryan v. State, 136 Miss. 587, 101 So. 381; Thornton v. State, 143 Miss. 262; Evans v. State, 157 Miss. 645, 128 So. 737.

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