Turnage v. State
| Decision Date | 18 February 1924 |
| Docket Number | 23473 |
| Citation | 99 So. 9,134 Miss. 431 |
| Court | Mississippi Supreme Court |
| Parties | TURNAGE v. STATE |
APPEAL from circuit court of Lauderdale county, HON. C. C. MILLER Judge.
Ernest Turnage and another were jointly indicted for the unlawful manufacture of alcoholic liquors, and from an order overruling his special plea for immunity the named defendant appeals. Affirmed.
Affirmed.
Parker & Snow, and Parker & Parker, for appellant.
The appellant was jointly indicted, together with Jim Maxie, John Kidd and Henry Turnage, for "manufacturing intoxicating liquors."
The revenue officers came upon a still in the woods, and Ernest Turnage and Jim Maxie, and other parties, were present at the still, and Jim Maxie and Ernest Turnage were there arrested. It was the defense of Jim Maxie that he had nothing to do with this still, but had, just prior to the arrival of the officers, walked up to the still, which was being run by others, and that Ernest Turnage, this appellant, knew the above facts to be true. Consequently this appellant was duly subpoenaed as a witness for Jim Maxie, and was called and placed upon the stand to testify concerning the operation of the still about which both this appellant and the then defendant, Jim Maxie, had been indicted.
This appellant when called as a witness was questioned about, and gave evidence concerning the still, and the operation of the still, at the time covered by the indictment against him, and upon which this conviction is based.
When this appellant was called for trial on the same indictment in which Jim Maxie was indicted, and under which Jim Maxie had bean tried, and concerning the matters involved in such trial, and the facts touching the guilt or innocence of this appellant had been testified to by this appellant, he filed his plea in court setting up the above facts as a plea in bar to this action, he being immune under the law to make further answer to such charge. The state answered this plea, and the appellant demurred to such answer.
This appellant is well within the terms of the law set out in section 1792 of the Code of 1906. As we construe this statute, no person is excused from testifying before any court in any cause or proceeding, criminal or otherwise based upon the violation of any of the Prohibition Laws. But no person shall be prosecuted for or on account of any transaction, matter or thing, concerning which he may testify.
It makes no difference what the nature of the trial is, whether it be criminal or otherwise, so long as it relates to the violation of the Prohibition Laws. There seem to be no exceptions provided for in this statute, and the breadth of this statute seems to necessarily exclude any exceptions.
In fact the supreme court of this state seems to have fully settled this question in the cases of State v. Bramlett, 47 So. 433; Wall v. State, 105 Miss. 543; Lucas v State, 93 So. 437.
This appellant is entitled to the immunity fixed by law in these cases.
S. C. Broom, Assistant Attorney-General for the state.
It is unnecessary to consider any phase of this case except that pertaining to the immunity statute. Section 1792, Code of 1906, section 2106, Hemingway's Code. This statute has been construed in the following cases: State v. Bramlett, 47 So. 433; Wall v. State, 105 Miss. 543, 62 So. 417; Lucas v. State, 93 So. 437, and Maxie v. State.
In the Bramlett case the indictment was quashed because the appellee was subpoenaed by subpoena duces tecum before the grand jury and there compelled to testify regarding his guilt or innocence touching the very matter on which the grand jury found the indictment. From this it will be seen that he was summoned by the state.
In Wall v. State, 105 Miss. 543, the appellant had been summoned before the grand jury, and in delivering his testimony; which he was compelled to do under section 1792 of the Code of 1906, he disclosed facts which incriminated him, and, therefore, he was immune from prosecution. But again we will observe that he was summoned by the state.
In Lucas v. State, 93 So. 437, the appellant voluntarily appeared before the grand jury and testified relative to the manufacture of intoxicating liquor, and thereby gained immunity. In the Lucas case the court said that it was not clear from the evidence whether appellant's appearance before the grand jury was voluntary or under compulsion, but the court further said that the statute contains no limitation of its benefits either to those who have testified under compulsion, or who have testified before the finding of an indictment against him. Immunity was granted, but again it will be seen that he appeared as a witness for the state before the grand jury.
The Maxie case is a companion case of the case at bar. Maxie claimed immunity because he had testified for the state in a murder case, where the officers were being prosecuted for murder for having killed a negro at the time the still was raised, and at the time when this appellant was present and arrested. The court held in the Maxie case that immunity in such cases was limited to an action pertaining to intoxicating liquor.
None of these authorities throw any light, nor are they analogous to the present case, nor could they be considered as authority for granting immunity to appellant in this case, because he appeared as a witness, not for the state, but for the defense for one of his co-defendants, jointly indicted with him, under circumstances strongly indicating collusion on the part of someone interested in the defense, and so regarded by the trial court.
It was never intended that this statute should thus be perverted into an instrument of evil to be used in this. way. 8 R. C. L. 125. It was enacted for the purpose of enabling the state to secure testimony in certain cases where otherwise it would be unable to obtain it, and it was not enacted to enable a person to testify as a witness for a co-defendant at the instance of the defendant, and thus secure immunity, as they have attempted to do in the present case. Just imagine the possible consequences of such a construction. If such was the law, it would be convenient and proper always to have some worthless negro around to unload on, and while he was serving his term in the penitentiary, the others could pursue their nefarious operations without serious interruption or inconvenience, and certainly without danger of punishment, if in the meantime they have provided another scapegoat.
The appellant, Ernest Turnage, Jim Maxie, and two others were jointly indicted by the grand jury of Lauderdale county for manufacturing alcoholic liquors. A severance was granted, and Jim Maxie was first tried for this offense. In his trial the appellant, Ernest Turnage, was a witness, placed upon the stand, and testified in behalf of the defendant. After the conviction of Maxie, the appellant, Turnage, was then placed on trial. He filed a special plea, setting up the facts of the joint indictment against himself, Maxie, and others; that he was duly subpoenaed as a witness, called, and testified as a witness for Maxie; that the facts and transactions involved in the trial of Maxie are the identical ones involved in his trial. For these reasons he claims immunity from prosecution and punishment by virtue of section 1792, Code of 1906 (Hemingway's Code, section 2106). This section is found in chapter 38 of Hemingway's Code, which chapter relates to intoxicating liquors. It reads as follows:
In considering this question it will be well to have in mind the general purpose and policy upon which immunity statutes of this character are founded. It is stated thus in 8 R. C. L., p. 125, section 101:
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