State v. Raley, 7856

• Decision Date: 15 November 1954
• Docket Number: No. 7856,7856
• Citation: 100 Ohio App. 75,136 N.E.2d 295
• Parties: , 60 O.O. 35 STATE of Ohio, Appellee, v. RALEY et al., Appellants.
• Court: Ohio Court of Appeals

Page 75

100 Ohio App. 75

136 N.E.2d 295, 60 O.O. 35

STATE of Ohio, Appellee, v. RALEY et al., Appellants.

No. 7856.

Court of Appeals of Ohio, Hamilton County.

Nov. 15, 1954.

Syllabus by the Court.

1. Section 103.31 et seq., Revised Code, creating the Ohio Un-American Activities Commission, confers authority beyond adjournment sine die of the General Assembly; and the life of such commission is limited only by the length of the term for which its members are elected to the General Assembly.

2. Sedition and treason are proper subjects of state action; treason against a state is not necessarily treason against the United States.

3. The provision of Section 103.35, Revised Code, directing that contempt proceedings shall be brought in accordance with Sections 2705.03 to 2705.09, inclusive, Revised Code, is not invalid, and it is immaterial if a charge of contempt takes the form of an indictment; contempt of the Ohio Un-American Activities Commission is a misdemeanor, and, by Section 2941.35, Revised Code, misdemeanors may be prosecuted on information sworn to by the prosecuting attorney, but such procedure is permissive, and the prosecution may be instituted by indictment.

4. Section 103.35, Revised Code, expressly and specifically makes 'refusal of any person or officer to testify' a contempt of such commission; and there is no attempt in the granting of powers to such commission by such section to confer judicial power, notwithstanding the statutes referred to by the General Assembly in specifying what acts are punishable as contempts deal with contempts of court; nor, where a charge of contempt of such commission is brought, is a court required to refer to Section 2705.02, Revised Code.

5. Section 103.35, Revised Code, makes 'refusal' to answer any question on any subject concerning which a witness 'may be lawfully interrogated' a contempt, and the observance of no particular ritual need be pursued in order to place a witness in contempt, the only requirements being that it be made to appear that such witness knowingly, deliberately and with full knowledge of the consequences refused to testify; that such witness was clearly apprised and not left to the risk of guessing upon pain of criminal penalties whether the grounds for his refusal to answer were accepted or rejected; and that, if rejected, he was given another opportunity to answer.

6. A witness's mere claim of privilege against self-incrimination under the Constitutions of Ohio and the United States can not be regarded as a defiance of the law or of such commission.

7. The burden is upon the state to prove that a refusal to answer is a deliberate act of a witness with knowledge of the consequences, in order to give such refusal the character of contumacy essential to a conviction for contempt, notwithstanding the applicability of an immunity statute.

8. Where a witness before the Ohio Un-American Activities Commission does not base his refusal to answer a question propounded to him by counsel for such commission on exemption from self-incrimination, and where remarks by the chairman of such commission show his approval of question propounded by counsel and that an answer thereto was expected, such witness thereby waives such ground.

9. Where questions are asked a witness by a member of such commission, the commission must be considered as expecting and demanding an answer thereto.

10. Where a witness before the Ohio Un-American Activities Commission asserts, in response to a question put to him by counsel for such commission, 'the privilege of the Fifth Amendment of the Constitution and Article I, Section 10, of the Ohio Constitution,' and refuses to answer such question, and where neither the chairman nor any other member of the commission indicates in any way that an answer is insisted upon, there is no showing that such witness was contumacious in such refusal to answer.

11. Statements by a witness, which concern a fact which is not part of a criminal transaction but is material in a prosecution based on such a transaction, such as giving his name, declaring his presence in some locality remote from the scene of the crime, or stating whether he was, in fact, a public official at the time it is claimed the offense was committed, do not in themselves constitute statements tending to incriminate him, although on a prosecution for some offense it may develop that they are material.

12. The immunity statute, Section 101.44, Revised Code, by its terms is limited to testimony given before a committee or sub-committee of the General Assembly, is applicable to proceedings before the Ohio Un-American Activities Commission and confers immunity to the limits of the state's power; and the fact that such immunity would be no shield from prosecution by other sovereignties, such as another state or the United States, is no valid basis for an objection to the operation of the immunity within the sovereignty granting it.

13. Section 101.41, Revised Code, relating to power of a committee chairman to subpoena witnesses, and Section 101.44, Revised Code, granting immunity for testimony given before a committee or subcommittee of the General Assembly, relate to entirely different matters; and the terms of one can not be used to limit the terms of the other.

Louis C. Capelle, Morse Johnson, Milton H. Schmidt and Chester R. Shook, Cincinnati, for appellants.

C. Watson Hover, Pros. Atty., and Carl B. Rubin, Cincinnati, for appellee.

MATTHEWS, Presiding Judge.

The defendants, appellants herein, were indicted separately for contempt of the Ohio Un-American Activities Commission, created and organized in accordance with the provisions of Sections 76-28 to 76-35, inclusive, General Code, as supplemented by the Act of the General Assembly passed on June 1, 1951, 124 Ohio Laws, 795, now Sections 103.31 to 103.38, inclusive, Revised Code. By agreement the cases were consolidated for trial in the Common Pleas Court. By entry of court on agreement of counsel they have been consolidated for the purpose of this appeal.

The plaintiff, appellee herein, will be referred to as the state.

The contempt charged is that the defendants, after having been duly sworn as witnesses before a duly constituted session of the Un-American Activities Commission, refused to testify in response to certain questions propounded to them.

It is charged that defendant Stern refused to answer two questions, defendant Brown four questions, and defendant Raley 16 questions. Each refusal was charged as a separate offense.

The defendants waived their right to a jury and elected to be tried by a judge of the court in which the indictments were pending.

After motions to quash, pleas in abatement, and demurrers had been overruled, the trial proceeded, and at its conclusion the court found the defendants guilty as charged and sentenced each to imprisonment in jail for 10 days and to pay a fine of $500 on each count, the prison sentences, however, running concurrently, and the fines, other than the first one, being remitted.

The motions to quash, the pleas in abatement, and the demurrers raised substantially the same questions. They attacked the constitutionality of Section 103.31 et seq., Revised Code, under which the Un-American Activities Commission assumed to act, denied the legal existence of such commission, and then assailed the right of the commission generally, and, in particular, the right of the commission to require the defendants to answer the questions upon which the indictments were based, against the defendants' claims of privilege from answering under Section 10, Article I of the Constitution of Ohio and the Fifth and Fourteenth Amendments to the Constitution of the United States.

That the General Assembly, both by implication from the grant of power to legislate and by express constitutional grant, Section 8, Article II, has power to 'obtain, through committees or otherwise, information affecting legislative action under consideration or in contemplation.' is too clear for debate. And, when the enabling act is in the form of a law approved by the Governor, or passed over his veto, and the subject matter about which the information is sought comes within the legislative power of the state, its validity is doubly clear.

Of course, where the enabling act provides for the appointment by the General Assembly of a committee or commission composed of its members, the authority of the members of such committee or commission would necessarily expire on the termination of their legislative term. The General Assembly is denied appointive power by the Constitution except in a few specified exceptions, Section 27, Article II. One of the exceptions is the power given it to appoint its own officers, including, of course, committees of its own members, but, as already stated, these appointments can not be for a longer life than that of the appointing power. The qualification to serve on a committee or commission is conditioned upon continued membership in the General Assembly.

It is claimed that as the General Assembly had adjourned sine die before the hearing at which the defendants were questioned, the authority of the commission had expired. We do not think that is the test of the duration of the commission's authority. We are of the opinion that the commission's life was limited only by the length of the term for which its members were elected to the General Assembly, subject, of course, to the repeal of the law in the meantime. We are of the opinion also that the law does purport to confer authority beyond the adjournment sine die of the General Assembly, but does not assume to confer any authority beyond the term for which the members of the commission were elected. It is true that the law required the filing of the commission's entire file with the Clerk of the Senate on January 31, 1954, and the filing of its report and recommendations with the 100th General Assembly and...