State v. Stout

• Citation: 176 Mo. App. 12,162 S.W. 1064
• Parties: STATE v. STOUT.
• Decision Date: 19 January 1914
• Court: Missouri Court of Appeals

162 S.W. 1064

176 Mo. App. 12

STATE v. STOUT.

Kansas City Court of Appeals. Missouri.

January 19, 1914.

WITNESSES (§ 305)—WAIVER OF PRIVILEGE.

In a criminal prosecution, a statement made by accused under oath before the grand jury is admissible in the evidence, even though she did not testify at trial, where it appears that she was warned when before the grand jury that she need not testify; for the privilege of refusing to testify as to incriminatory matters is one which may be waived.

Appeal from Circuit Court, Boone County; David H. Harris, Judge.

Nettie Stout was convicted of crime, and she appeals. Affirmed.

J. L. Stephens, of Columbia, for appellant. Anderson & Starrett, of Columbia, for the State.

ELLISON, P. J.

The defendant was indicted and convicted for keeping a bawdy-house in Columbia.

The evidence was abundant to support the verdict. Among other testimony one of the inmates of the house testified that defendant kept the house with five female inmates, and that men visited the place in day and night time; that she did not know what they did for a living; that she did not know where the girls came from, and did not know the names of all of them; that "one girl would take one man to a private room for the purpose of entertainment"; and that she "was not supposed to know what they do."

It seems that defendant was before the grand jury and gave a statement under oath, and that was introduced in evidence. It was objected to "for the reason that the defendant has not been used as a witness, and therefore it cannot be offered in rebuttal of any testimony on her part, none having been given by her, and for the further reason that it is incompetent for any purpose whatever in this case." It does not appear that she was before the grand jury by compulsion, or that she made her statement involuntarily. On the contrary, she was told by the prosecuting attorney that she need not testify, and cautioned that if she did, she need not state anything which would tend to show her guilty of violating the law. In such circumstances the state insists the evidence was proper.

"It is everywhere ruled that this is a personal privilege which one may waive, and must be held to have waived when he voluntarily answers without objecting to it that it would incriminate him." State v. Faulkner, 185 Mo. 673, 695, 84 S. W. 967, 973; State v. Douglass, 1 Mo. 527.

But defendant contends the evidence was not admissible under the Constitution, providing that no...