State v. Comer

• Citation: 157 Ind. 611, 62 N.E. 452
• Case Date: January 09, 1902
• Court: Supreme Court of Indiana

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

[62 N.E. 453]

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...