State v. Comer

• Decision Date: 09 January 1902
• Citation: 157 Ind. 611,62 N.E. 452
• Parties: STATE v. COMER.
• Court: Indiana Supreme Court

157 Ind. 611

62 N.E. 452

STATE

v.COMER.

Supreme Court of Indiana.

Jan. 9, 1902.

Appeal from circuit court, Clinton county; James V. Kent, Judge.

James Comer was indicted for selling his vote, and from a judgment of dismissal the state appeals. Reversed.

W. L. Taylor, Atty. Gen., A. L. McGuire, Merrill Moores, and C. C. Hadley, for the State.

MONKS, J.

Appellee was charged by indictment with selling his vote, in violation of section 1, Acts 1899, p. 381, being section 2329, Burns' Rev. St. 1901 (section 4734g, Horner's Rev. St. 1901). Appellee filed a plea in abatement to the indictment, to which plea appellant demurred for want of facts. The court overruled the demurrer, and appellant filed a reply in two paragraphs. A demurrer for want of facts to each paragraph of reply was sustained, and final judgment rendered discharging appellee.

The errors assigned call in question the action of the court in overruling appellant's demurrer to the plea in abatement and in sustaining appellee's demurrer to each paragraph of reply. The part of the plea in abatement essential to the determination of the questions presented is as follows: “That the grand jury of said county were informed and believed that appellee had before that time, at the general election of 1900, sold his vote; that for the purpose of obtaining evidence against appellee in said matter, and for the purpose of securing an indictment against appellee for said supposed violation of said election law, the grand jury caused a subpœna to issue directing the sheriff of said county to summon appellee before the grand jury to answer such questions as might be propounded to him by the said grand jury; that the sheriff of said county served said subpœna on appellee, who went before the grand jury; that appellee was then sworn, and while under oath was interrogated by the grand jury, and was then and there by said grand jury compelled, forced, and caused to involuntarily testify, in answer thereto, to matters and facts concerning said crime of vote selling committed by him; that at the time he testified before said grand jury he was not informed by any one, and did not know, that he had the legal right to refuse to testify or give to said grand jury any evidence concerning his supposed connection with or commission of said acts in violation of the election law he was suspicioned by said jury to have committed, and if at said time he had had such information and knowledge he would not have testified before said grand jury about said facts, nor given said jury any testimony or evidence in relation thereto; that the indictment was returned upon the testimony so given by appellee.” The fifth amendment of the constitution of the United States provides that no person “shall be compelled in any criminal case to be a witness against himself”; and section 14 of article 1 of the constitution of this state provides that “no person in any criminal case shall be compelled to testify against himself.” It is claimed “that the facts alleged in said plea were sufficient to abate said action, because said plea shows that appellee was deprived of a right guarantied by the state and federal constitutions.” This appeal was taken under section 8, Acts 1901, p. 566, being section 1337h, Burns' Rev. St. 1901 (section 6565 1/2d, Horner's Rev. St. 1901), for the purpose of presenting that question. It has been uniformly held that the fifth amendment of the constitution of the United States operates exclusively in restriction of federal power, and has no application to the states. Thorington v. Montgomery, 147 U. S. 490, 492, 13 Sup. Ct. 394, 37 L. Ed. 252;Irrigation Dist. v. Bradley, 164 U. S. 12, 17 Sup. Ct. 56, 41 L. Ed. 369;Brown v. New Jersey, 175 U. S. 174, 20 Sup. Ct. 77, 44 L. Ed. 119;Barron v. Baltimore, 7 Pet. 243, 247, 8 L. Ed. 672. It is evident, therefore, that said fifth amendment of the constitution of the United States has no application to this case.

Being subpœnaed, and appearing before the grand jury, and being sworn, was not a violation of appellee's constitutional rights; and while before the grand jury he could be compelled to testify to any matter which did not criminate him. Under the provision of the constitution of this state, above quoted, he could not, however, be compelled to testify before the grand jury to any matter that would criminate him. Whether he should so testify was, therefore, a personal privilege, which he could claim or not, as he chose. If he gave such criminating evidence voluntarily, his constitutional rights were not violated. It is the general rule that, when a personal privilege exists for a witness to testify or not, as he chooses, if he does testify without objection he will be deemed to have done so voluntarily.

It is alleged in the plea that the grand jury compelled and forced him involuntarily to testify to facts criminating himself. This is a mere conclusion. The rules of pleading require that facts, and not conclusions, be alleged. The grand jury cannot compel a witness to testify before that body. This can only be done by the court in which said grand jury is impaneled, under the provisions of sections 1733, 1734, Burns' Rev. St. 1901 (sections 1664, 1665, Rev. St. 1881; sections 1664, 1665, Horner's Rev. St. 1901). The averments of said plea do not show that appellee was compelled to answer any question or give any evidence before the grand jury. It is alleged that appellee was ignorant of...