State v. Lillian C. Wood

Decision Date06 October 1926
CourtVermont Supreme Court

February Term, 1926.

INFORMATION for perjury. Plea, not guilty. Trial by jury at the September Term, 1924, Franklin County, Fish, J presiding. Verdict of guilty and sentence thereon. The respondent excepted. The opinion states the case.

Judgment that there was no error in the proceedings and that the respondent take nothing by her exceptions. Let execution be done.

W. R. McFeeters for the respondent.

M. H. Alexander, State's attorney, for the State.

Present: WATSON, C. J., POWERS, TAYLOR, SLACK and BUTLER, JJ., TAYLOR, J., sat at the hearing of this case, but later deceased and took no part in the decision here made.


Subject to exception by respondent on the grounds stated below, the State was permitted to show, and did show by proper evidence, the testimony given by the respondent after being duly sworn, as a witness called by the defendant in the trial of the case of Walter V. Phelps against E. F. Greenwood (hereinafter designated the former case), together with her refusals to answer certain questions then and there asked her and the rulings of the court in connection therewith--all as set forth in the information. The grounds of the exception were: (1) That the witness exercised her constitutional privilege by refusing to answer the questions referred to, because she felt that her answers "might tend to incriminate" her; (2) that the testimony relied upon to sustain the information in this case was given by her under compulsion and duress; and (3) that her answers on which the information is based were not material to any issue in the case in which they were given.

Regarding the first ground, the court held as a matter of law that the constitutional privilege of silence did not protect the respondent from this prosecution. This holding was sound if, from the facts and the circumstances shown in this case and the nature of the evidence which the witness was called to give, the court could see that the privilege was inapplicable (Mason v. United States, 244 U.S. 362, 61 L.Ed. 1198, 37 S.Ct. 621; In re Consolidated Rendering Co., 80 Vt. 55, 66 A. 790, 11 Ann. Cas. 1069, Affirmed 207 U.S. 541, 52 L.Ed. 327, 28 S.Ct. 178, 12 Ann. Cas. 658), or, having such privilege, she waived it. State v. Duncan, 78 Vt. 364, 63 A. 225, 4 L.R.A. (N.S.) 1144, 112 Am. St. Rep. 922, 6 Ann. Cas. 602.

The contention of the respondent seems to be, however, that her refusal to answer the particular questions because she feared her answers, if given, might tend to incriminate her, was conclusive as to the tendency. But her statement in such respect was not conclusive. By the established rule in this State, the question whether the testimony was privileged, when properly raised by the witness, was for the court to decide. This was the holding in the case of In re Consolidated Rendering Company, supra, where the question was decided on such full discussion and review of authorities that a reexamination of the question at this time can serve no beneficial purpose.

Not only is the foregoing question for the court to decide, but it is to be considered and determined with reference to the limitation that "The constitutional protection against self-incrimination is confined to real danger, and does not extend to remote possibilities out of the ordinary course of law." Mason v. United States, supra.

While the record before us in the instant case is not very full in detail of circumstances, there is nothing indicating that any criminal offense was committed in this State by the respondent in taking the trip by automobile in October, 1922, with Walter V. Phelps, concerning which she refused to testify because she feared her answer to the question asked might tend to incriminate her. Indeed, there is nothing indicating that they made any stop in this State when going, except in the town of Georgia where a short stop was made in the highway to get the automobile back on the road from which it had skidded. This was in the early evening. It is common knowledge that long distances can be run in a few hours when traveling with such mode of conveyance; and, taking the route shown by the evidence, they could easily be in the state of New York, and probably were, before a very late hour at night.

Whether in making this trip as and for the purpose he did, Phelps rendered himself liable criminally under the so-called "White Slave Traffic" statute (G. L. 7018-7020), is a question in no wise here involved. But certain it is that the respondent was not made liable to a penalty under that statute, by accompanying him. Nor do the provisions of No. 199, Acts of 1919, entitled "An Act Relating to Prostitition," render her so liable, for the simple reason, if for no other, that the Act has no extraterritorial effect. The acts and purposes therein specified and made penal, are by rule of construction limited to such acts and purposes within this State. For penal statutes which use general words are to be construed as not intended to have extraterritorial effect, unless they clearly indicate a different intent--an intent not indicated by this statute. State v. Peet, 80 Vt. 449, 68 A. 661, 14 L. R.A. (N.S.) 677, 130 Am. St. Rep. 998; Bishop & Co. v. Thompson, 99 Vt. 17, 130 A. 701.

In disposing of the question whether the respondent had the right to exercise the privilege of silence, we do not notice the criminal laws of any other state, nor whether they were violated by her while on the trip in question. The only danger to be considered is such as arose within this jurisdiction and under the state sovereignty. Jack v. Kansas, 199 U.S. 372, 50 L.Ed. 234, 26 S.Ct. 73, 4 Ann. Cas. 689; Hale v. Henkel, 201 U.S. 43, 50 L. ed 652, 26 S.Ct. 370; State v. Thomas, 98 N.C. 599, 4 S.E. 518, 2 Am. St. Rep. 351; Wigmore Ev. § 2258.

We therefore hold that from the facts and circumstances in the former case and the nature of the evidence which the respondent was there called to give, as shown by the record now before us, there was no reasonable ground to apprehend real danger to her in being required to answer the question propounded; that consequently she was not entitled to exercise the privilege of silence, and the court was well within the proper performance of its duties in insisting that answer be made. Regina v. Boyes (1861), 1 Best & Smith 311; McGorray v. Sutter, 80 Ohio St. 400, 89 N.E. 10, 24 L.R.A. (N.S.) 165, 131 Am. St. Rep. 715.

The holdings in the preceding paragraph render inapplicable the doctrine urged in the respondent's brief (quoted from Jones on Evidence, § 891), "If the witness is compelled to answer, when he is entitled to his privilege, and after the question has been properly raised, his answer cannot be used against him in a subsequent criminal action; such statements are regarded as given under compulsion and duress." On this legal proposition the authorities are not in harmony, and no inference is to be drawn from what we have here said or holdings made, as to our views concerning it.

It serves the purposes of this case to say that since the witness was not entitled to exercise the privilege of silence, it was her duty to answer truthfully, as she knew the facts to be, the questions propounded to her, and if in answering such questions she willfully testified falsely concerning matters material to any issue then on trial, it was perjury for which she is here liable, the case being otherwise made out.

But it is contended that there was no evidence in the case at bar upon which it could be said that the testimony of the respondent in the former case, on which is based the information for perjury, was material to any issue in that case, and so it did not afford a proper basis in law for this criminal prosecution. The question thus raised was one of law for the court to decide.

The two Mr. McFeeters were counsel for the defendant in the trial of the former case, and also counsel for the respondent in the trial of the case at bar. In the course of the latter trial the court sought to ascertain from the counsel thus in the two cases, as to the respondent's relation to the former case. One of the Mr. McFeeters stated the nature of that action, and that the testimony of the respondent was introduced by the defendant therein, regarding her relations with the plaintiff Phelps, in mitigation of damages. Thereupon the court said: "That is, the testimony was offered for the purpose of showing that Mr. Phelps' relations to Mrs. Wood were such that he was not entitled to recover any considerable damages because he himself had been so related to a similar transaction that there could not any considerable harm fall to him, was that it?" To this Mr. McFeeters answered, "It was in mitigation of damages, your honor."

Later one of the counsel for the plaintiff in the trial of the former...

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