State v. Murphy

• Decision Date: 17 April 1906
• Citation: 128 Wis. 201,107 N.W. 470
• Parties: STATE v. MURPHY.
• Court: Wisconsin Supreme Court

128 Wis. 201

107 N.W. 470

STATE

v.MURPHY.

Supreme Court of Wisconsin.

April 17, 1906.

William Murphy was convicted of bribery, and the trial court certified certain questions to the Supreme Court. Questions answered.

On February 1, 1904, an information was filed against the defendant charging that on the 17th day of June, 1899, he then being an alderman of the city of Milwaukee, Wis., solicited and received from Oscar F. Davis $80 for the purpose of inducing accused to vote in favor of a then pending ordinance allowing said Davis's firm to lay a side track across certain streets in said city of Milwaukee. After reversal of the first conviction (124 Wis. 635, 102 N. W. 1087) the action was again brought to trial, the defendant having interposed both a plea of not guilty and a plea in bar for that, before a grand jury sitting on the 9th day of January, 1902, charged with the duty of investigating such offenses, defendant attended and gave testimony as to the transactions, matters, and things alleged in the information, by reason whereof the defendant claimed he could not be prosecuted or subjected to any penalty or forfeiture therefor. The case being reached for trial, defendant's attorney's called attention to the plea in bar, and stated that was the first thing to be heard and tried, to be followed, if necessary, by the plea of not guilty, to which the court responded, “that will be the order of procedure.” Accordingly, jury being impaneled, trial on the special plea proceeded, where was proved the instructions to the grand jury to consider all malfeasance in office on the part of city and county officers with a reference to the statutes against bribery; also offer of proof that defendant was subpœnaed to attend on the 9th day of January, 1902, and did so. They then called the clerk of the grand jury and produced his minutes, showing that defendant was produced as a witness, sworn, and was asked and answered questions; that the minutes of testimony read thus: “Ald. Wm. Murphy, alderman Third Ward, serving second term, sworn: Know Fred Schultz, J. M. Clarke, Mr. Walker. Know of no alderman or public official demanding or receiving money to support any contract, special privilege, or franchise. Never had conversation with Schultz, or any other newspaper man, about special privilegee for electric signs.” Witness stated: “That does not purport to give the questions asked Mr. Murphy; only a synopsis of the answers.” Thereupon defendant testified that he was subpœnaed, sworn, and examined by the district attorney, and was asked “if I received any money for my vote on special privileges, bay windows, side tracks, electric light, street railway extensions, I, or any of the aldermen or city officials,” and that he answered such questions. Also that the district attorney “asked me if I got any money for side track privileges or if I knew any alderman or any city official that had received money for their influence, their vote--I answered him.”“I answered these questions under oath * * * I answered fully all questions asked me while a witness before the grand jury.” The ordinance granting Davis Bros. a right to lay a side track was introduced and passed before the examination before the grand jury. On cross-examination he stated that he had no recollection of being cautioned that he need not give evidence which, in his opinion, would criminate him, but he could not swear positively that he gave his testimony voluntarily and offered no objections to the questions asked him, and that the minutes kept by Mr. Moravitz are not a full report of the testimony he gave; that he did not volunteer any evidence, only answered what he was asked and gave his testimony because he was subpœnaed to go before them and was asked questions by the prosecuting attorney, but freely and voluntarily. Mr. Goff, assistant district attorney, stated that the witnesses (before the grand jury) were instructed that they need not incriminate themselves; also that the attention of the district attorney had not been called to chapter 85, Laws of 1901. Thereupon, on motion of the district attorney, the court directed the jury to find a verdict in favor of the state, which they accordingly did, and to which action defendant duly excepted. Then the trial upon the plea of not guilty proceeded and defendant was convicted of the charge set forth in the information. Thereupon the court, deeming that certain questions were doubtful and important, certified the following for answer, viz.: “(1) Was the evidence, all of which is herewith certified sufficient to immune the defendant under the provisions of section 4078, Rev. St. 1898, as amended by chapter 85, p. 106, Laws of 1901? (2) Did the court err in directing a verdict against the defendant and in favor of the state on the special plea in bar herein, under the evidence? (3) Should the plea of immunity be tried separately, or in conjunction with the plea of not guilty?”

Dodge and Siebecker, JJ., dissenting in part.L. M. Sturdevant, Atty. Gen., A. C. Titus, Asst. Atty. Gen. (Francis E. McGovern, Dist. Atty., and Guy D. Goff, Asst. Dist. Atty., of counsel), for the State.

J. M. Clarke and Hoyt, Umbreit & Olwell, for defendant.

DODGE, J. (after stating the facts).

In presenting the first question certified, counsel have discussed many general considerations bearing upon the purpose and scope of this immunity statute which, in its exact form and words, originated with Congress in Act Feb. 11, 1893, c. 83, 27 Stat. 443 [U. S. Comp. St. 1901 p. 3173]. The counsel for the state insists that its only purpose is to enable the obtaining of evidence which by the fourth and fifth amendments to the Constitution of the United States a witness is privileged to withhold but for such a statute, hence that it must be construed as intending to grant immunity only broad enough to accomplish that result; only such as must be granted in order to evade the constitutional privilege of silence as to self-criminatory facts. But must we assume that the statutory immunity is no broader than the constitutional privilege of a witness to withhold evidence which may be used against him in a criminal case? The Legislature, of course, might refrain from invading private liberty up to the full limit that the Constitution permits just as individuals may, and some do refrain from disturbing their neighbors' comfort up to the full limit permitted by law. If the words of the act in question, reasonably considered, do fairly promise a broader immunity than could have been secured had the constitutional privilege of silence been exercised, why should they not be given effect. No court can presume that the Legislature acted in bad faith or with intent to mislead or deceive. Great Falls Mfg. Co. v. Attorney General, 124 U. S. 599, 8 Sup. Ct. 631, 31 L. Ed. 527. Hence any promise such as this is to be at least fairly construed in favor of one who in consideration thereof is deprived of a valuable right. Is there anything in the history of this legislation so clearly limiting the legislative intent that it should control the words used to express it? In an effort to reach certain crimes which involved complicity of two or more persons and, ordinarily, could not be proved without the testimony of some of those concerned, Congress had enacted that no such testimony “shall be given in evidence, or in any manner used against such party or witness,” etc. Notwithstanding this statute, Counselman, a grain dealer, refused to answer to a grand jury whether he had obtained any rebates or cut rates from railroads, also whether he knew of any such favor being allowed any shipper in Chicago. The Supreme Court of the United States sustained him in such refusal by unanimous decision, where was considered exhaustively, in the light of all prior adjudications, the true construction of the constitutional right of silence as to criminatory matters. It was held that this right is a highly favored one, the preservation of which is more important and sacred than any considerations of convenience of government in discovering or punishing crime; that it reaches not only disclosure of actual crime, but of any fact however apparently innocent in and of itself which might under any circumstances aid in supplying a link in a chain of circumstantial evidence of a crime, or even might constitute a source or means from which or by which evidence of its commission or of his connection with it may be obtained or made effectual for his conviction, without using his answers as direct admissions against him.” Counselman v. Hitchcock, 142 U. S. 547, 585, 12 Sup. Ct. 195, 206, 35 L. Ed. 1110; a view sustained by Marshall, C. J., 1 Burr's Trial, 244; Boyd v. U. S., 116 U. S. 616, 6 Sup. Ct. 524, 29 L. Ed. 746;Bram v. U. S., 168 U. S. 532, 18 Sup. Ct. 183, 42 L. Ed. 568;People v. Forbes, 143 N. Y. 219, 38 N. E. 303; Emery's Case, 107 Mass. 172, 9 Am. Rep. 22;Thornton v. State, 117 Wis. 338, 341, 93 N. W. 1107, 98 Am. St. Rep. 924. Upon this construction of the Constitution it was held that the statute then under consideration merely prohibiting the use in evidence in any proceeding against him of the testimony a witness might have given in other described proceedings, was not equivalent to the protection resulting to him from the constitutional privilege to remain silent, and that nothing short of complete immunity from prosecution or punishment could be so equivalent; that unless the statute made it impossible that there should be a “criminal case” against him which might be aided in the way described by some answer to the questions propounded he still might refuse to answer. This case has since been followed in nearly all the states where either the construction of a similar constitutional guaranty or an immunity statute has been considered, although in some of them a different view had previously been declared; notably in New York, where the Court of Appeals has...