State v. Lowrie

• Decision Date: 26 October 1951
• Docket Number: No. 35343,35343
• Citation: 235 Minn. 82,49 N.W.2d 631
• Parties: STATE v. LOWRIE.
• Court: Minnesota Supreme Court

Page 631

49 N.W.2d 631

235 Minn. 82

STATE v. LOWRIE.

No. 35343.

Supreme Court of Minnesota.

Oct. 26, 1951.

Syllabus by the Court.

Where, in an investigation by the public examiner in connection with attempted bribery of the county attorney to permit defendant to conduct illegal gambling operations without interference, the public examiner secured a waiver of immunity from defendant and thereupon took defendant's statement; and where defendant was subsequently indicted for the crime of attempted bribery, Held, since the investigation was not within the power or authority of the public examiner, that defendant is not exempt from prosecution under the statutes of this state.

Cause remanded to trial court for such further proceedings as are by law required.

J. A. A. Burnquist, Atty. Gen., Ralph A. Stone, Asst. Atty. Gen., Robert R. Dunlap, County Atty., Plainview, for plaintiff.

Foley & Foley, Wabasha, Lawrence R. Lunde, Lake City, for defendant.

MAGNEY, Justice.

This case comes to the writer by reassignment.

Defendant was indicted by the grand jury of Wabasha county for the crime of attempted bribery. The court made an order denying his motion to quash the indictment and for certain other relief. It reported and certified to this court that certain questions presented to it were deemed so important and doubtful as to require a determination here before further proceedings could be had.

The indictment sets forth that on or about May 15, 1949, defendant requested one Hollie Cliff to call upon the county attorney of Wabasha county to ascertain the amount of money the latter would accept in order to permit defendant to conduct illegal gambling operations in Wabasha county without suppression or prosecution; that subsequently defendant paid Cliff certain sums, with instructions and with the intent that Cliff should deliver such money to the county attorney so that defendant might engage in the illegal operations described without interference; and that Cliff at no time discussed the matter with the county attorney, but retained all sums paid to him for his own use.

In January 1950, defendant, in response to a request from Karl A. Nuerenberg, as acting assistant to the state public examiner, gave testimony under oath covering details of the transaction set out in the indictment. It is not disputed that the investigation, as understood by defendant and by Nuerenberg, related to the official conduct of the county attorney and the sheriff of Wabasha county.

Defendant was not subpoenaed to so testify and was not represented by counsel. He was advised, however, that if he did not testify papers compelling him to do so would be served upon him. He was then taken to a room in the county jail in Wabasha county for the purpose of the investigation. He was there presented with a waiver of immunity, which, at the request of Nuerenberg, he executed, acknowledged, and delivered to Nuerenberg. It provided:

'I, the undersigned John E. Lowrie, am advised that the Department of Public Examiner, State of Minnesota, is now investigating certain charges involving J.E.L. Extortion.

'I know fully and appreciate my rights under the Constitution and laws of this state. I know: (1) that I am not obliged to and cannot be compelled to be a witness with reference To said charges before the Public Examiner or his duly authorized representative, or the grand jury, Or to testify with reference to said matters or charges against me.

'(4) Of my right to counsel of my own selection. I have been fully advised of my rights by Karl A. Nuerenberg, Public Accounts Examiner, Department of Public Examiner, State of Minnesota.

'* * * I agree that anything that I may say or testimony that I may give before said Public Examiner, or his duly authorized representative, at any time may be used by the grand jury, if such a jury is called, to consider Any charges or indictments against me; and I agree further that anything I may say or testimony that I may give may also be used against me or any other person In any case, matter, or litigation, criminal or civil, that may hereafter be tried in any court or tribunal. And I further agree not to object to or attack Any indictment against me that may be returned by a grand jury on the ground that I testified before said Public Examiner or his duly authorized representative, or that such indictment is based in part upon my testimony.' (Italics supplied.)

The testimony of defendant thereafter taken by Nuerenberg was recorded on a soundscriber and subsequently transcribed. No copy thereof was delivered to defendant.

On May 15, 1950, defendant executed an instrument entitled 'Withdrawal of Waiver of Immunity,' and on the same day served copies thereof upon the judge of the district court, the county attorney, and the foreman of the grand jury, and filed the original with the clerk of the district court of Wabasha county.

On May 18, 1950, the grand jury returned the indictment charging defendant with the crime of attempted bribery. On May 22, 1950, defendant made a motion to quash the indictment. On June 6, 1950, he moved the court for interlocutory orders (1) permitting the taking of oral testimony on the motion to quash the indictment; (2) requiring Karl A. Nuerenberg to appear before the court for the purpose of cross-examination; and (3) striking from the files the affidavit by Nuerenberg which related to defendant's execution of the described waiver of immunity and to his testimony before Nuerenberg.

As indicated, the court on June 15, 1950, made its order denying all of defendant's motions, and at the request of defendant certified the following questions to this court:

'(1) Do the statutes of Minnesota exempt defendant from prosecution for the offense stated in the indictment?

'(2) If so, does public policy prevent a waiver of such exemption?

'(3) If the first question is answered in the affirmative and the second in the negative, may the defendant withdraw his waiver before he is indicted?

'(4) If the first question is answered in the affirmative, and the second and third in the negative, did the defendant waive exemption from prosecution?'

In a well-considered memorandum attached to the order of June 15, 1950, the court sets forth that M.S.A. §§ 215.16 and 215.17, the provisions of the statutes under which defendant claims exemption from prosecution, are restricted to inquiries, examinations, and investigations made by the public examiner in the performance of his official duties; that the public examiner acted outside the scope of his duties when he investigated the alleged attempt to bribe the county attorney; and that consequently defendant was not required to obey any subpoena, or to answer any question, or to give any information.

M.S.A. § 215.01, which specifies the powers and duties of the public examiner, reads as follows: 'The department of the public examiner is hereby created, which shall have the duty and power to supervise all public accounts, to prescribe and install systems of accounts and reports, to inspect all records and transactions connected with the receipt, disbursement, and custody of public funds, to investigate the use and security of all public appropriations and property, to ascertain the sources and condition of the public revenue, investments, loans, and debt, and to verify the public funds and examine and report upon the condition and security thereof.'

Section 215.16 provides: 'In all matters relating to his official duties, the public examiner shall have the powers possessed by courts of law to issue subpoenas and cause them to be served and enforced. All state and county auditors, treasurers, and other public officials, and their respective deputies and employees, all officers, directors, and employees of all railway and other companies required by law to pay taxes to the state upon a gross earnings basis, and all persons having dealings with or knowledge of the affairs or methods of such companies, and likewise all corporations, firms, and individuals having business involving the receipt, disbursement, or custody of the public funds shall at all times afford reasonable facilities for such examinations, make such returns and reports to the public examiner as he may require, attend and answer under oath his lawful inquiries, produce and exhibit such books, accounts, documents, and property as he may desire to inspect, and in all things aid him in the performance of his duties.'

Section 215.17 makes it a felony to refuse or neglect to obey any lawful direction of the public examiner.

Reading § 215.01, set out above in full, in connection with the facts set out in the indictment, it is apparent that when the examiner took the statement from defendant he was acting outside the scope of his duties. Attempting to bribe the county attorney has nothing to do with 'public funds,' 'public accounts,' 'public appropriations and property,' or 'public revenue, investments, loans, and debt.' No doubt the public examiner has a duty to investigate bribery charges when those charges grow out of matters which it is his duty to investigate and examine. As stated by the trial court in its memorandum: '* * * I have been unable to find any statute which makes it the duty of the public examiner to investigate bribery as such.'

Since the public examiner was acting outside the scope of his duties when he investigated the alleged attempt to bribe the county attorney, defendant was not required to obey any subpoena, or to answer any question, or give any information. He could not have been compelled to testify. If the examiner had been proceeding within the scope of his duties, the provisions of § 613.16 might apply. But that is not our situation.

The first question presented to us is: 'Do the statutes * * * exempt defendant from prosecution for the offense stated in the indictment?'

Under the facts here, it would seem that the Statutes do not exempt defendant from pro...