State v. Jackson

Citation145 P. 470,83 Wash. 514
Decision Date11 January 1915
Docket Number11885.
CourtUnited States State Supreme Court of Washington
PartiesSTATE v. JACKSON et al.

Department 1. Appeal from Superior Court, Pacific County; Edw. H Wright, Judge.

J. W Jackson and another were convicted of crime, and appeal. Reversed and remanded.

J. T Welsh and M. M. Richardson, both of South Bend, and Robt. G. Chambers, of Raymond, for appellants.

H. W. B. Hewen, of South Bend, for the State.

CHADWICK J.

Appellants were convicted of the crime of conspiracy to pervert and corrupt public justice and the due administration of law, in the superior court of Pacific county, Wash., in a case there pending entitled J. W. Coleman and Belle Coleman v. City of Raymond. They have brought their case here, making 21 assignments of error. We will not discuss assignments which, in our judgment, have no merit, or which will not likely recur upon a new trial, or those which we regard as without prejudice.

It is one of the contentions of the state that the defendants, acting in conspiracy, had paid money to suborn the testimony of certain witnesses. The city of Raymond had drawn a warrant which had been forwarded to one of the defendants at Portland, Or., where it is alleged the witnesses were corrupted. The state also contended that a witness had been induced to make a certain statement in writing, and that the statement tended to prove the crime charged. Prior to the trial the prosecuting attorney made a demand upon the defendants to produce the draft and statement. They were not produced. A witness was called to give secondary evidence as to the contents of the bank draft, and the witness, who it is alleged signed the statement, was called for a like purpose. The prosecuting attorney, in the presence of the court and jury, and over the objections of counsel renewed his demand for the production of the documents. This, in our judgment, constitutes reversible error.

'To permit a demand to be made on the defendant in a criminal case, in the presence of the jury, to produce a paper or document containing incriminating evidence against him, is a violation of the immunity secured to him by the fifth amendment to the Constitution [of the United States], providing that no person in any criminal case shall be compelled to be a witness against himself.' McKnight v. United States, 115 F. 972, 54 C. C. A. 358.

The reasoning to sustain this principle lies in this: That the state is not put to the necessity neither will it be permitted to put an inference of guilt which necessarily flows from an imputation that the accused person has suppressed or is withholding evidence, when the Constitution provides that no person shall be compelled to give evidence against himself. Not being bound to produce evidence against himself, the demand is futile, and can serve no purpose, except to put defendant in a false light before the jury, and compel him to defend himself against the inferences arising from a collateral circumstance and to the stress of extricating himself from a position in which the Constitution says he shall not be placed. The state, under the ordinary rules of evidence, could have examined either one of the witnesses as fully and as completely as it desired without demanding the documents.

In Gillespie v. State, 5 Okl. Cr. 546, 115 P. 620, 35 L. R. A. (N. S.) 1171, Ann. Cas. 1912D, 259, it is said:

'When such a demand is made, a defendant must accept the alternative of either producing the letters, and thereby incriminating himself, or of having the jury place the strongest possible construction against him upon his failure to do so. If this can be done, the very life, body, and soul of the Constitution would be violated and trampled upon.' McKnight v. U. S., 122 F. 926, 61 C. C. A. 112; State v. Merkley, 74 Iowa, 695, 39 N.W. 111; Ellis v. State, 8 Okl. Cr. 522, 128 P. 1095, 43 L. R. A. (N. S.) 811; Hibbard v. U. S., 172 F. 66, 96 C. C. A. 554, 18 Ann. Cas. 1040.

While the question has never come to this court in just the same way, the principle is recognized in the case of State v. O'Hara, 17 Wash. 525, 50 P. 477, 933, where a reversal was predicated upon a record showing that the court had compelled a defendant, who was a witness on his own behalf, and over his objection, to testify that certain letters and documents had been written by him, and in State v. McCauley, 17 Wash. 88, 49 P. 221, 51 P. 382, where it was held that the right of the state to introduce secondary evidence did not depend upon a notice to produce documents possessed by a defendant, and which were believed to be incriminating, for the reason that it was beyond the power of the court to enforce the demand. The court followed McGinnis v. State, 24 Ind. 500:

'It is difficult to perceive what benefit could result, either to the state or the defendant, from giving of such a notice, while to the defendant it is liable to work a positive injury, by producing an unfavorable impression against him in the minds of the jury, upon his refusal to procure it after notice.'

But it is contended by the prosecuting attorney that the rules of practice in civil cases, in the absence of a special statute (Rem. & Bal. Code,§§ 2137, 2152, 2158), are made the rule of practice in criminal cases. Admitting that in a proper case this contention would be well founded, it is sufficient answer to say that no statutory rule of practice, whether in a civil or criminal case, would interfere to bar a defendant of the protection of section 9, art. 1, of our Bill of Rights and of the fifth amendment to the Constitution of the United States.

The prosecuting attorney earnestly and sincerely challenges the rule in the case of McKnight. He cites many cases holding that it is not error for the prosecuting attorney to comment upon the fact that a defendant has failed to produce evidence that was within his possession and under his control. Our answer to these cases and his argument is that this court, in the cases of O'Hara and McCauley, has adopted a different rule, and that they are, in our judgment, hostile to the fifth amendment of the Constitution of the United States, and possibly to the Constitutions of the states where they were pronounced. The prosecuting attorney also relies upon the criticism of Mr. Wigmore, who, in his work on Evidence (volume 3 [1904 Ed.] p. 3149, § 2273, note 3), says:

'The following case is unique: 1902, McKnight v. U. S., 54 C. C. A. 358, 115 F. 972 (after evidence that an incriminating document is in the accused's possession, no notice of production can be given by the prosecution, because the claiming of the privilege would permit inferences to be drawn against him. The ruling is made on the assumption that a copy could be used under such circumstances without notice to produce--an incorrect assumption, as shown ante, §§ 1202, 1205, 1207. It also involves the fallacy that the mere necessity of making a claim of privilege for documents is improper because of the possible resulting inference--a fallacy which reasons in a circle, because the privilege cannot be enforced until it is claimed, and the court cannot both enforce it and forbid the necessary condition precedent to enforcing it. The ruling also involves the fallacy that the accused's failure, on notice, to produce the document was equivalent to a claim of privilege, but it was not because it might have been done in precisely the same way for a noncriminating document, and would merely have served as a basis for the use of a copy by the prosecution. These three fallacies so subtly combine in this ruling that the result is a plausible one; but the ruling remains purely fallacious and wholly unsound).'

If we were treating the question in the abstract, it might with some plausibility be contended that we were reasoning in a circle, but reasoning cannot be rejected as meeting itself at the other side of a circle when at the point of meeting it comes counter to a constitutional provision which says that a thing shall not be done. This means, shall not be done directly or by the pursuit of indirect methods. Furthermore, the reasoning of the learned text-writer is faulty in this: The constitutional privilege of the defendant is known to the prosecuting attorney, and to demand a paper alleged to be incriminating, a jury being present, can bear but one construction, and that is a purpose to cast a reflection of guilt. We reject the authorities cited by the state for the further reason that, under our statute and under the fundamental principles of the law as we understand them to be, the state could have proved all that it hoped to prove without a demand either before or at the trial. The state contends also that, granting all this to be so, it was error without prejudice, because the defendants took the stand in their own behalf and testified as to the matters inquired into.

The principle that one who voluntarily offers himself as a witness cannot invoke that provision of the Constitution which guarantees that no person shall be compelled in any case to give evidence against himself is relied on. State v. Duncan, 7 Wash. 336, 35 P. 117, 38 Am. St. Rep. 888; State v. Ulsemer, 24 Wash. 657, 64 P. 800. These cases do not apply to the case at bar. It cannot be said that a witness who has been put under the imputation of guilt (Chamberlayne, Modern Law of Evidence, 1080), in definance of the Constitution of the state, and who offers himself as a witness to explain so far as he can the testimony which in law he has been forced to give against himself by inferential and indirect methods, is a voluntary witness. The fact that a witness may be compelled to answer to the jury for something that could not be introduced directly is in itself enough to sustain the protective clauses of the Constitution....

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