State v. Nolan

• Decision Date: 28 July 1950
• Docket Number: 35195,Nos. 35194,s. 35194
• Citation: 44 N.W.2d 66,231 Minn. 522
• Court: Minnesota Supreme Court
• Parties: STATE v. NOLAN et al.

Page 66

44 N.W.2d 66

231 Minn. 522

STATE v. NOLAN et al.

Nos. 35194, 35195.

Supreme Court of Minnesota.

July 28, 1950.

Syllabus by the Court

1. Minn.Const. art. 1, § 7, provides that no person shall be compelled in any criminal case to be a witness against himself. This constitutional privilege applies with full force to a situation where the person being examined is before an administrative officer for investigation.

2. A statutory immunity relied upon to require a person to answer questions which tend to incriminate him must be as broad as the crime being investigated and must put the person so examined beyond the reach of punitory legal procedure before he can be required to answer such a question.

3. M.S.A. 215.16 contains no provision granting immunity to a person being examined by the public examiner under the provisions of that section.

4. Section 613.04 of the bribery statute provides immunity only for a witness required to answer self-incriminating questions before a court or magistrate. It does not grant such immunity to a witness sworn before the public examiner.

5. The public examiner is not a court or magistrate and could not, under Minn. Const. art. 3, be given judicial powers to pass upon objections to questions made on the ground that the answers thereto would tend to incriminate the witness. The power to rule upon whether there is reasonable ground to apprehend that the answer will tend to incriminate the witness is a judicial power. State v. Thaden, 43 Minn. 253, 45 N.W. 447.

6. Section 610.47 does not apply to an examination conducted under § 215.16, because the latter section contains no provision that a witness shall not be excused from giving testimony tending to criminate himself.

7. Section 613.16 purports only to allow a plea in bar to an accusation of bribery in behalf of a witness who has testified against another person relative to such bribery.

8. There is a clear distinction between the constitutional privilege of a person under accusation of a crime and one who is a witness only and who objects to answering a question on the ground that the answer may tend to incriminate him. The accused may not be compelled to be a witness against himself. A person who is a witness only must object to answering each question on the ground that the answer will tend to incriminate him.

9. In the cases at bar, while the inference is strong that defendants were the real objects of the investigation and that they objected for that reason to being required to testify, they yielded to the insistence of the public examiner and gave the testimony which, under the indictments before us, is asserted to have been false. The constitutional privilege and the statutory immunity, if any, is for past offenses, not for such offenses as may be committed while testifying under the immunity. Consequently, these defendants may not now successfully plead immunity from prosecution for testifying falsely before the public examiner.

J. A. A. Burnquist, Attorney General, Ralph A. Stone, Assistant Attorney General, James F. Lynch, Ramsey County Attorney, Richard B. Ryan, Assistant County Attorney, John P. Frank, Assistant County Attorney, all of St. Paul, for plaintiff.

Cummins, Cummins & Hammond, St. Paul, for defendants.

LORING, Chief Justice.

These cases came here on a certified question after the trial court had overruled the defendants' demurrers and denied their motions to quash indictments which charged that on April 28, 1949, defendants 'falsely swore under oath' while testifying before the public examiner relative to a transaction between the Minnesota Four Wheel Drive Company, Inc., and a Minnesota city. The examiner was investigating that transaction to ascertain whether there was a bribe given to the mayor of the city in connection with the sale of a truck to the city by that company, of which defendants were officers and principal stockholders. They were before a deputy public examiner on that date in response to subpoenas duly issued by the examiner and served upon them.

The motions to quash were supported by affidavits which asserted that prior to their examination defendants had informed the public examiner that they were 'standing on their constitutional rights and refusing to testify' on the ground that their testimony would tend to incriminate them because the examiner 'was developing facts to charge' them 'with crimes.' This is not denied by the state. On the contrary, the state admits that the statements in the affidavits are substantially true. In spite of defendants' objections, the examiner insisted upon their testifying relative to the transaction for the sale of the truck, threatening them with a court order if they refused. They yielded and testified, and it is in this testimony that the indictments charge that they 'falsely swore under oath.'

The question certified to us by the trial court reads as follows:

'Does the Constitution of the United States, the Constitution of the State of Minnesota, Section 613.04, R.S. 1945, or Section 610.47, R.S. 1945, grant immunity to a defendant from prosecution under Section 215.17, R.S. 1945, when he testifies under compulsion before the Public Examiner under the authority granted in Section 215.16, R.S. 1945, when such testimony is false?' (Obviously, the court refers to sections in the Minnesota Statutes Annotated, usually cited as M.S.A.)

We answer the question only to the extent of its relevancy to the issues raised by the court's action now before us. It is conceded by the parties that no decision of this court has been found which is directly in point.

1. On the face of the indictment, the transaction investigated was between the company and the city, but the defendants here asserted in their affidavits that they, as officers and principal stockholders, were being investigated with a view to developing facts to charge them with crimes. The state, in effect, admits this. Such being the case, unless they were effectively granted immunity by some statute, they could be prosecuted and punished for participation in the bribery and consequently could not be compelled by any court or administrative agency to incriminate themselves in regard thereto, or to testify. Minn. Const. art. 1, § 7, M.S.A. The constitutional privilege extends with full force to an investigation by an administrative officer. 8 Wigmore, Evidence, 3d Ed., § 2282, p. 516 et seq.

2. In order to justify compulsory answers which tend to incriminate the person being examined, the statutory immunity must be coextensive with the protection afforded by Minn. Const. art. 1, § 7, M.S.A. It must be as broad as the crime being investigated. As some courts say, it must, as to the person being examined, obliterate the crime ¹; or, as this court said, in State v. Ruff, 176 Minn. 308, 311, 223 N.W. 144, 145, the witness must be 'put beyond the reach of punitory legal procedure.' As said by the supreme court of New Hampshire, State v. Nowell, 58 N.H. 314, 316, cited in the Ruff case, the protection extended must be 'equivalent to his legal innocence of the crime disclosed.' See, also, Counselman v. Hitchcock, 142 U.S. 547, 585-586, 12 S.Ct. 195, 206, 35 L.Ed. 1110, 1122; Glickstein v. United States, 222 U.S. 139, 141, 32 S.Ct. 71, 72, 56 L.Ed. 128, 130.

3. M.S.A. 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 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, * * *.' (Italics supplied.)

This statute does not of itself provide any immunity whatever for a witness requested to give self-incriminating testimony, nor does it specifically define 'lawful inquiries' to include questions, the answers to which might reasonably be so regarded if the witness objected thereto on the ground that his answer might tend to incriminate him. In its ordinary meaning, a 'lawful inquiry' would not include such questions.

4-5-6. Section 613.04, M.S.A., of the bribery statute, which was before this court in State v. Ruff, 176 Minn. 308, 223 N.W. 144, provides immunity for a witness required to answer self-incriminating questions before 'any court or magistrate' in an investigation, proceeding, or trial for the violation of the bribery statute. Since the public examiner is not a court or magistrate and could not, under Minn. Const. art. 3, M.S.A., be given judicial powers to pass upon objections to questions made, on the ground that answers would tend to incriminate a witness, this section grants no immunity to a witness sworn before the public examiner.

That the power to rule upon whether there is reasonable ground to apprehend that the evidence will tend to incriminate the witness is a judicial question is established in the leading case of State v. Thaden, 43 Minn. 253, 45 N.W. 447. ²

Section 610.47 provides:

'In every case in the Minnesota Statutes where it is provided that a witness shall not be excused from giving testimony tending to criminate himself, no person shall be excused from testifying or producing any papers or documents on the ground that his testimony may tend to criminate him or subject him to a penalty or forfeiture; but he shall not be prosecuted or subjected to a penalty or forfeiture for or on account of any action, matter, or thing concerning which he shall so testify, except for perjury committed in such testimony.' (Italics supplied.)

This section does not apply to an examination conducted under § 215.16...