Taylor v. Commonwealth
| Decision Date | 07 June 1938 |
| Citation | 274 Ky. 51 |
| Parties | Taylor v. Commonwealth. |
| Court | United States State Supreme Court — District of Kentucky |
1. Witnesses. — A citizen cannot be compelled to give evidence against himself in any criminal prosecution ).
2. Witnesses. — A citizen cannot be compelled to give evidence against himself in proceedings before a grand jury, since such proceedings are a very important part of a prosecution ).
3. Constitutional Law. — A witness' privilege of exemption from being compelled to give evidence against himself in criminal prosecution continues though there be no statute ).
4. Witnesses. — One voluntarily testifying before an inquisitorial body is not entitled to immunity, and an indictment returned against him is not invalidated by reason thereof ).
5. Witnesses. — The appearing and the testifying before a grand jury in obedience to a subpoena is sufficient compulsion to entitle an accused person to immunity ).
6. Witnesses. — "Compulsion," to entitle to immunity an accused person, who has been required to testify against himself, is the antithesis of willingness ).
7. Witnesses. — Generally, witness desiring benefit of constitutional privilege against self-incrimination must claim it ).
8. Witnesses. — Generally, witness' constitutional privilege against self-incrimination is personal and may be waived ).
9. Witnesses. — Generally, failure to warn witness of his constitutional right to refuse to answer questions on ground of self-incrimination is not a violation of such privilege ).
10. Witnesses. — Where accused was taken from jail to grand jury, covert threats were made against him, and he was plied with questions, and accused testified unwillingly, there was "compulsion" within meaning of the Constitution ).
11. Grand Jury. — In their proceedings, grand jurors cannot deprive a citizen of any substantial right assured by the Constitution.
12. Witnesses. — Grand jurors cannot call a person before them and compel him to testify against himself for the purpose of finding an indictment against him ).
13. Witnesses. — That, in an individual application, a guilty man should escape or the administration of justice be delayed, is better than that the fundamental personal right of a witness not to incriminate himself should be violated ).
14. Indictment and Information; Witnesses. — An accused, who was taken from jail before the grand jury and questioned concerning a crime, was compelled to incriminate himself in violation of constitution, and indictment against him would be quashed, notwithstanding that his testimony as a whole before the grand jury was that he was innocent and notwithstanding that there was other evidence than that given by accused ).
15. Indictment and Information. — The fact that Court of Appeals ordered indictment quashed, on ground that accused had been compelled to incriminate himself in violation of Constitution, would not prevent another indictment being returned against him on the same charge, provided that indictment would not be based on any information which accused was called on to give the former grand jury indicting him ).
Appeal from Lincoln Circuit Court.
BAKER & BAKER for appellant.
HUBERT MEREDITH, Attorney General, and W. OWEN KELLER, Assistant Attorney General, for appellee.
OPINION OF THE COURT BY STANLEY, COMMISSIONER.Reversing.
The case presents a question of constitutional immunity from compulsory self-crimination.
The appellant, Eugene Taylor, and another, James Webber, were jointly indicted on the charge of grand larceny, committed by stealing wool. Upon a separate trial Taylor was convicted and sentenced to two years' imprisonment.
The court overruled the defendant's motion to quash the indictment and his plea in abatement. On the hearing it was established that the accused was in jail upon this charge; the foreman of the grand jury sent for him; a deputy jailer told him he had to go before the grand jury and took him there; he was sworn, and, being warned as to the penalty for "swearing a lie," was interrogated by several members of the grand jury concerning the crime with which he stood charged. The accused was not told that he did not have to testify or advised that whatever he said might be used against him. He related that he had not wanted to testify, but was excited and thought he had to go ahead and tell about it. He told the grand jury that he had been with Webber in his truck the night the wool was stolen; that he had been drinking and had fallen asleep; that he had nothing to do with taking the wool, but had been later told by Webber that while he was in this drunken stupor, he, Webber, had got the bag of wool and concealed it. He gave details of his association with Webber that night and of the transaction as he knew it. The foreman and clerk of the grand jury testified without objection from either party. While they say the accused gave no evidence against himself, yet he had been asked "a lot of questions." The grand jury, the foreman testified, concluded that Webber could not have handled the wool by himself as he had described, and the indictment against Taylor was based upon the fact that he was with him. There was evidence before that body other than the appellant's that he had been with Webber that night.
It should be said that during these proceedings neither the Commonwealth's Attorney nor the County Attorney was present.
It is one of the "great and essential principles of liberty and free government" that a citizen shall not be compelled to give evidence against himself in any criminal prosecution. It is enough that this is a constitutional guaranty contained in the Bill of Rights of the Constitution of Kentucky, Sec. 11, and (though not operative on a witness in a state court) in the Bill of Rights of the Constitution of the United States, Fifth Amendment, U.S.C.A. Constitution Amendment 5. The right is accented by being a heritage from our English fathers, for it is among the fundamentals of just procedure, born of the travail of the centuries. 4 Wigmore on Evidence, Sec. 2250, et seq.; Marshall v. Riley, 7 Ga. 367; State v. Height, 117 Iowa 650, 91 N.W. 935, 59 L.R.A. 437, 94 Am. St. Rep. 323. Proceedings before a grand jury are within the meaning of constitutional exemption for it is a very important part of a prosecution. Wharton's Cr. Ev. (11th Ed.) Sec. 1140; Bentler v. Com., 143 Ky. 503, 136 S.W. 896; Frain v. Applegate, 239 Ky. 605, 40 S.W. (2d) 274.
It is not unusual to find statutes providing that a witness, though a participant in a criminal offense, may not refuse to answer any question upon the ground of self-crimination, but most of them establish this principle of full and complete immunity against prosecution based upon such disclosure. Among others in Kentucky, we have such statutes in relation to gambling, Sec. 1973; statutory conspiracy, Sec. 1241a-7; and intoxicating liquor prohibitions, Sec. 2554c-36. These statutes are construed as giving immunity as broad as the constitutional provision against requiring one to incriminate himself. Some of them expressly grant absolute immunity from any sort of prosecution for the offense. Bentler v. Com., supra; Com. v. Barnett, 196 Ky. 731, 245 S.W. 874. But the right being preserved by the constitution, the privilege of exemption continues though there be no statute. Counselman v. Hitchcock, 142 U.S. 547, 12 S. Ct. 195, 35 L. Ed. 1110.
When the court is called upon in a given case to protect this right, there are two controlling conditions to be looked for. First, the factor of compulsion; secondly, the element of self-crimination.
First. One voluntarily testifying before an inquisitorial body is not entitled to immunity and an indictment returned against him is not invalidated by reason thereof. Gentry v. Com., 215 Ky. 728, 286 S.W 1040; Turner v. Com., 227 Ky. 520, 13 S.W. (2d) 533; Hill v. Com., 232 Ky. 453, 23 S.W. (2d) 930; Bromfield v. Board of Commissioners, 233 Ky. 250, 25 S.W. (2d) 393; Frost v. Com., 258 Ky. 709, 81 S.W. (2d) 583; note, 27 A.L.R. 147. But appearing and testifying before a grand jury in obedience to a subpoena is sufficient compulsion to entitle an accused person to immunity. Counselman v. Hitchcock, supra; Bentler v. Com., supra; Dunn v. Com., 200 Ky. 262, 254 S.W. 896; Hall v. Com., 202 Ky. 811, 261 S.W. 597; Hubbard v. Com., 207 Ky. 785, 270 S.W. 30; note, 27 A.L.R. 148. Certainly, a jailer taking a prisoner before the grand jury is as compelling as serving a summons upon him. In the appellant's situation, such process would have been a futility.
Having been brought before such tribunal by this involuntary method, the question arises whether the giving of testimony by the accused was under like force. U. S. v. Kimball, C.C., 117 F. 156, 163. The New York court, in People v. Bermel, 71 Misc. 356, 128 N.Y.S. 524, 527, 26 N.Y. Cr. R. 47, drew a distinction between a witness in a general investigation not aimed at him and a witness who is in fact the party being proceeded against. If of...
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