State v. Duncan

• Decision Date: 02 February 1906
• Citation: 78 Vt. 364,63 A. 225
• Parties: STATE v. DUNCAN et al.
• Court: Vermont Supreme Court

63 A. 225

78 Vt. 364

STATE

v. DUNCAN et al.

Supreme Court of Vermont. Caledonia.

Feb. 2, 1906.

Exceptions from Caledonia County Court; Loveland Munson, Judge.

James Duncan and others were indicted for conspiracy, and from a judgment sustaining a demurrer to their pleas in abatement, they appeal. Affirmed.

Argued before ROWELL, C. J., and TYLER, WATSON, HASELTON, POWERS, and MILES, JJ.

Frank D. Thompson, State's Atty., W. W. Miles, and David E. Porter, for the State. Seuter & Seuter, Taylor & Dutton, M. G. Morse, and H. B. Howe, for respondents.

ROWELL, C. J. This is an indictment against ten for conspiracy to "prevent, hinder, and deter" the several persons therein named, "by violence, threats, and intimidation, from further engaging and continuing in the business of manufacturing granite." Five of the prisoners were summoned before the grand jury and gave self-criminating evidence under oath, and they severally plead that in abatement. The other five jointly plead that in abatement, although they themselves were not called before the grand jury. The pleas are demurred to; but only McNaughton's several plea need be considered, as the others are essentially like it. That plea alleged that while said indictment and the charges of conspiracy therein contained were pending before the grand jury, and while the grand jury was investigating and inquiring into said charges and considering whether it would find said indictment, the prisoner appeared before the grand jury in obedience to a subpoena duly served upon him; that he did not then know that said indictment and charges were being investigated; that he was not permitted to have counsel, and was not advised in the premises; that he was sworn by the foreman of the grand jury to testify upon the subject-matter of said charges, and was required and compelled to make oath as a witness, and then and there under oath was required and compelled to give testimony touching said indictment and charges, and was fully interrogated as to them, and questioned as to each and every detail, fact, and circumstance of the same, and was then and there obliged and compelled to make, and then and there did make, answer thereto on his oath; that he was not then and there informed by the grand jury, the state's attorney, nor any one else, and did not know, that his own conduct and acts in reference to said charges were then and there in question and under consideration by the grand jury; that he was not informed, and did not know, that he was then and there charged with any crime, and was not then and there warned nor advised of his right and privilege to refuse to give evidence against himself, and was wholly ignorant and uninformed of his rights in that respect, and did then and there involuntarily and upon his oath answer all questions asked him concerning said charges, and was compelled to testify, and did testify, to facts that were material and necessary to establish the truth of said charges against him and the other respondents; that his said testimony was considered and acted upon by the grand jury in finding and presenting said indictment; and that he was summoned before the grand jury as aforesaid for the purpose of obtaining evidence from him upon which to find said indictment against him and the other respondents.

It is objected that as the matter complained of does not go to the qualification of the grand jury, but only to the propriety of its proceedings, it cannot be taken advantage of by plea in abatement, but only, if at all, by suggestion to the court. But we pass over that question, and consider the plea on its merits. Our Constitution declares that no one can be compelled to give criminating evidence against himself. Such is the common law. "Nemo tenetur seipsum accusare." It is objected that the plea is bad, because it does not show that the prisoner was compelled to give criminating evidence against himself. This immunity is a personal privilege, and may be waived, and is waived if not seasonably asserted, and the testimony regarded as voluntary. Chamberlin v. Wilson, 12 Vt. 491, 36 Am. Dec. 356. The plea does not show that the prisoner asserted his privilege. It alleges that he involuntarily testified. But that is subjective, signifying only his mental state, and means no more than unwillingly and reluctantly, and does not imply a disclosure of that mental state by objecting to answer nor otherwise; and until such disclosure was made in some way there could have been no compulsion. True, the plea alleges compulsion; but that is only a conclusion, and is not warranted by the facts alleged.

In People v. Lauder, 82 Mich. 109, 46 N W. 956, the prisoner, who was indicted for bribery, pleaded in abatement that he appeared before the grand jury in obedience to a subpoena, and being ignorant of the fact that charges of bribery against him were being inquired into, and without counsel or being advised in the premises, he was required and compelled to, and did, give his testimony, and was fully interrogated as to said charges, and testified to facts material and necessary to prove their truth and to sustain the indictment, and that upon his testimony and that of other witnesses the indictment was found. The court said that being subpoenaed and appearing before the grand jury was not a violation of the prisoner's constitutional rights, nor being sworn before that body, nor testifying upon any matter that did not criminate him, for the law compelled him to do all that under pains and penalties, but that it did not compel him to criminate himself, and that in all cases where a personal privilege exists for a witness to testify or not, and he testifies without objection, he will be deemed to have done so voluntarily. The court went on to say that the prisoner did not say in his plea that he claimed his privilege, or refused to answer any question; that he averred that he was required and compelled to, and did, make answer to the questions put to him; but that that was a conclusion from the facts, whereas the rules of pleading in abatement required him to set forth the facts, and not his conclusions. It is objected that that case is by a divided court, and stands alone; and Boone v. People, 148 Ill. 440, 36 N. E. 99, is much relied upon as holding a different doctrine. It is true that the Michigan case is by a divided court, but it does not stand alone, nor is the Illinois case opposed to it; for there, at the time of his examination before the grand jury, the prisoner was in custody in jail, charged with the very crime about which he was examined and for which he was indicted, and therefore he stood as a party, and not as a mere witness, and the court specially noted that distinction. But in the Michigan case the prisoner was not in custody, charged with the offense, at the time he was examined, and therein lies a marked and fundamental difference between the cases.

State v. Comer, 157 Ind. 611, 62 N. E. 452, is practically like the Michigan case. There the prisoner was indicted for selling his vote in violation of the statute. He pleaded in abatement that, for the purpose of obtaining evidence and securing an indictment against him, the grand jury caused him to be summoned before them to answer such questions as might be propounded to him; that he appeared, and was sworn, and while under oath was interrogated by the grand jury, and by them then and there compelled, forced, and caused involuntarily to testify to matters and facts concerning said crime; that he was not then and there informed by any one, and did not knew, that he had the legal right to refuse to testify or give to the grand jury any evidence concerning his supposed connection with or commission of said crime, whereof the grand jury suspected him guilty; that if he had had such information and knowledge he would not have testified about such facts, nor given the grand jury any evidence in relation thereto; and that the indictment was returned upon the testimony so given by him. The court said that being summoned and appearing before the grand jury and being sworn was not a violation of the prisoner's constitutional rights, and while before the grand jury he could be compelled to testify to any matter that would not criminate him, but could not be compelled to testify to any matter that would criminate him, and could claim his privilege or not, as he chose; but if he gave criminating evidence...