Thornton v. State

• Decision Date: 17 May 1926
• Docket Number: 25049
• Citation: 143 Miss. 262,108 So. 709
• Court: Mississippi Supreme Court
• Parties: THORNTON v. STATE. [*]

108 So. 709

143 Miss. 262

THORNTON v. STATE. ^[*]

No. 25049

Supreme Court of Mississippi

May 17, 1926

Division A

On Motion for Final Discharge, June 15, 1925.

1. CRIMINAL LAW. Defendant, having been questioned relative to liquor conditions by grand jury when testifying voluntarily before it for another purpose, held immune from prosecution for manufacturing liquor (Code 1906, section 1792 [Hemingway's Code, section 2106]).

Where defendant voluntarily went before grand jury for purpose of testifying as to a certain matter, and when in act of leaving was called back and questioned relative to whiskey business and rum running, he was entitled, under Code 1906, section 1792 (Hemingway's Code, section 2106), to immunity from prosecution against him for manufacturing liquor.

2 WITNESSES.

Testimony given by defendant before grand jury, admitting presence at still and stating that on approach of officers he fled and was captured, held such as would tend to incriminate him in prosecution for manufacturing liquor and of character that he was privileged to withhold under Constitution 1890, section 26.

APPEAL from circuit court of Scott county, HON. G. E. WILSON, Judge.

Otis Thornton was convicted of manufacturing liquor, and he appeals. Reversed and remanded.

Judgment reversed, and cause remanded. Motion sustained.

Eastland & Mize and E. O. Sykes, for appellant.

The plea of immunity should have been sustained. The uncontradicted testimony taken on the hearing of this plea shows that the appellant under oath testified before the grand jury in response to questions asked him by its members about the violations of the liquor law. He was asked in detail about this very transaction and testified about it. It is true he was not subpoenaed before the grand jury. This however, under our decisions, makes no difference. One who testifies about a particular liquor transaction as a witness for the state, whether before a grand or petit jury, is entitled to this immunity. Evidently the learned circuit judge thought it was necessary that he be subpoenaed before the grand jury. The contrary, however, has been expressly decided by this court.

Section 2106, Hemingway's Code, states that "no person shall be prosecuted for any transaction, matter or thing about which he may testify." This statute is very broad and contains no limitations to the effect that the witness must have been subpoenaed. It has been construed by this court in the following cases: Wall v. State, 105 Miss. 543; Bramlett v. State, 47 So. 433; Griffin v State, 127 Miss. 315; Lucas v. State, 130 Miss. 8; Maxie v. State, 133 Miss. 243; Turnage v. State, 134 Miss. 431; Hosey v. State, 136 Miss. 5; Triplett v. State, 136 Miss. 320; Suddoth v. State, 136 Miss. 742; Ryan v. State, 136 Miss. 587.

Under these authorities, particularly the Lucas, Turnage and Ryan cases, we submit that the plea of immunity is good and that the appellant should now be discharged.

Rufus Creekmore, Special Assistant Attorney-General, for the state.

Counsel urge that the plea of immunity should have been sustained. The contention is based on section 2106, Hemingway's Code, which provides that no person shall be prosecuted or subject to any penalty for or on account of any transaction concerning which he may testify before the grand jury or any court. A number of cases construing this statute are cited by counsel, the leading case being Lucas v. State, 130 Miss. 8. In this case it was held that the statute was broad enough to cover the case of parties who had voluntarily testified. In the Lucas case, however, the evidence was not clear as to whether or not the defendant testified voluntarily and so this point was not necessarily involved in the decision of the case.

In the Ryan case cited by counsel the defendant was subpoenaed to appear before the grand jury but his testimony as to the facts which incriminated him was given voluntarily. In both of these cases, however, there was no question but that the facts testified to by the defendant were such facts as tended to incriminate him and in all of these cases there was an admission of guilt made by the defendant in his testimony before the grand jury.

The Suddoth, Triplett, Griffin and Wall cases are all to the same effect, each involving a situation where the defendant testified to facts which were of themselves a confession of guilt by him. None of these cases, therefore, involved facts which were similar to those which we here have before us.

The facts here present a case which is very peculiar in two respects: (1) It is unusual in that the defendant procured himself to be brought before the grand jury; and (2) in that the facts to which he testified there were not such facts as would incriminate him, but on the contrary were such as would prove his innocence. The defendant did not admit his guilt before the grand jury, but his testimony amounted to a plea of not guilty.

We must also remember that this plea presented an affirmative defense, and the law is well settled that the burden of proving such a defense is on the party undertaking to establish it. Hosey v. State, 136 Miss. 5.

The findings of fact made by the court are just as final and conclusive as the verdict of a jury would have been. By its decision the court determined: (1) That the defendant procured himself to be brought before the grand jury for the purpose of obtaining immunity from prosecution; (2) That the facts testified to by him before the grand jury did not tend to criminate him of the crime for which he was being tried. This determination of the facts by the court must prevail since there was plenty of evidence supporting its findings.

The case of Turnage v. State, 134 Miss. 431, held that this immunity statute did not apply to the case of a person testifying on behalf of a defendant even though he were legally subpoenaed, and that this was true even though the terms of the statute itself were broad enough to cover such a case. The reasoning in that case is particularly applicable to the facts in this case.

If the statute is not to be applied in such a case as the Turnage case, how much stronger is the reason that it should not be applied in the case of a person seeking by his own fraudulent acts to obtain the immunity granted?

We have been unable to find any Mississippi cases which involve this exact point. We present, however, for your Honors' consideration the Alabama case of Burt v. State, 101 So. 768. See, also, State v. Carchidi (Wis.), 204 N.W. 473; Davis v. State (Texas), 246 S.W. 395.

We respectfully submit that no error was committed by the court in overruling the plea of immunity filed by the defendant.

Eastland & Mize and E. O. Sykes, in reply, for appellant.

In reply to the able brief of the state, it is our contention that the uncontradicted testimony shows that the appellant is entitled to immunity because he testified before the grand jury about the transaction, matter, and thing; namely, the operation of this still. The statute uses the words above used by us. It grants immunity to anyone who testifies in any way about the violation of the particular liquor law. He cannot be tried for this particular violation.

The statute does not say that this testimony must tend to incriminate him. The reasoning of the court in the Turnage case is to the effect that the state may, if it sees fit, make this trade with the defendant. If it does, the defendant is entitled to this immunity regardless of the nature of his testimony. The case of State v. Carchidi, 204 N.W. 473, cited by counsel for appellee, decides that, "The evidence given by him must have been of a character which he was privileged to withhold under the constitution,"--in other words, evidence that would tend to incriminate him.

This opinion limits the language of the statute very much. It is directly contrary to the enunciation of the Federal court in the case of U. S. v. Armour & Co., 142 F. 808. The case of Davis v. State, 246 S.W. 395, also relied upon by the appellee merely decides that the testimony of the woman in that case was not testimony against her or against anybody else.

However, if this court should adopt the stringent rule laid down by the Wisconsin court, namely, that the testimony must tend to incriminate him, then Thornton is still entitled to immunity because his testimony tends to incriminate him. He told the grand jury of the still, who was there, and that he thought he got shot, etc. Again, he told the grand jury that he saw the liquor running and that he was making it.

Counsel also contends that the testimony shows that appellant procured himself to be called before the grand jury in order that he might obtain immunity from prosecution. We take issue with counsel that any such finding of fact can be made in this case under the testimony.

In the Alabama case, Burt v. State, 101 So. 768, the man deliberately told the prosecuting attorney a story by virtue of which he was permitted to appear before the grand jury. In this case the appellant told the member of the grand jury the truth. Appellant was under oath. Section 2106 required him to answer all questions propounded to him. The grand jury controlled the situation. They had the right in the first instance to admit him or refuse him admission. They had the right in the second instance to ask him or not any...